Garratt v Saxby

The improper disclosure of a Part 36 offer to an appeal judge is a procedural irregularity, but it does not automatically invalidate the proceedings. An appeal may be allowed only where the irregularity was serious and made the lower court’s decision unjust.

If a judge becomes aware of such an offer, the judge must decide whether a fair hearing remains possible. Recusal depends on both the judge’s assessment and whether a fair-minded and informed observer would perceive a real possibility of unfairness. Delay, cost and proportionality are relevant.

A driver crossing an obstructed cycle route where cyclists have priority must proceed slowly, keep a careful lookout and be ready to stop quickly.

A cyclist collided with a truck whose driver was turning across a cycle route at a dangerous and partly obstructed junction. The Oxford County Court found no negligence by the driver and dismissed the claim. On appeal, Cox J held that the driver was negligent because he had failed to keep an adequate lookout. She assessed the cyclist’s contributory negligence at 40%.

The driver appealed. He argued that the High Court had wrongly interfered with the trial judge’s findings and that the apparent disclosure to Cox J of a Part 36 offer, contrary to the Civil Procedure Rules 1998, was a serious procedural irregularity. The Court of Appeal considered whether the disclosure required the High Court’s decision to be set aside and whether its conclusion on liability was sustainable.

1. Appeal dismissed unanimously. Cox J had been provided with material containing a reference to the Part 36 offer, in breach of Rule 52.12(1) of the Civil Procedure Rules 1998. Material included among documents placed before an appeal judge is disclosed within that rule. References to offers or payments must therefore be redacted before the documents are provided.

2. The evidence supported the inference that Cox J had not read the reference. Under Rule 52.11(3)(b), a procedural irregularity must be serious and must have made the lower court’s decision unjust. Although the breach was potentially serious, it could not have influenced a judge who was unaware of the offer. Justice did not require the appeal to be allowed.

3. Dyson LJ gave further guidance for cases in which a judge does see an improperly disclosed offer. The guidance in Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 KB 717 should continue to be followed. The judge must decide whether the disclosure prevents a fair hearing and requires recusal. The judge should consider both personal ability to continue fairly and whether a fair-minded and informed observer would perceive a real possibility of unfairness. The overriding objective, including expense and proportionality, is relevant. Judges should not recuse themselves too readily merely because they have seen a Part 36 offer.

4. Cox J had not reversed any primary finding based upon the trial judge’s assessment of witnesses. The supposed presence of a longer than normal vehicle masking the cyclist lacked evidential support and was speculation. She was entitled to decide liability from the supported and unchallenged findings.

5. The driver knew that the junction was dangerous, that cyclists had priority and that stationary vehicles obstructed his view. A driver turning across that route had to travel slowly, keep a careful lookout and be ready to stop very quickly. The finding that the driver had glanced left only once justified the conclusion that he was negligent. There was no sufficient factual basis for the proposed causation defence. The Court declined to alter the 40% contributory-negligence assessment merely because Dyson LJ would have preferred 50%. The respondent received costs summarily assessed at £3,000.

1. Court of Appeal (Civil Division): The defendant’s appeal was dismissed unanimously. The High Court’s findings of primary liability and 40% contributory negligence were left undisturbed.

2. High Court, Queen’s Bench Division: Cox J allowed the claimant’s appeal, held the driver negligent and assessed the claimant’s contributory negligence at 40%.

3. Oxford County Court: Judge Charles Harris QC found that the driver had not been negligent and dismissed the cyclist’s claim.