Awberry v Marley Building Materials Ltd.

An appellate court reviewing a discretionary decision must conduct a review rather than a rehearing. It must not substitute its own discretion merely because it prefers another outcome. Intervention is justified where the lower court exceeded the reasonable ambit of discretion, including by omitting a relevant consideration or giving it insufficient weight. The error need not amount to perversity or Wednesbury unreasonableness. In an application under rule 36.6(5) of the Civil Procedure Rules, the parties’ comparative injustice and a material mistake causing an excessive payment were central considerations. Failure to address or properly weigh them made the refusal to reduce the payment wrong.

The claimant, an employee injured at work, brought proceedings for damages after liability was admitted. The respondent employer made a payment into court under Part 36, which the claimant accepted. The respondent then sought permission under rule 36.6(5) of the Civil Procedure Rules to reduce the payment after discovering that the claimant had received £55,362 under a personal accident policy maintained by the respondent.

District Judge Henry refused permission. HHJ Charles Harris QC allowed the respondent’s appeal, set aside that decision and permitted the payment to be modified. The claimant brought a second appeal. The central issue was whether the circuit judge had substituted his own discretion or had correctly found the district judge’s decision wrong on an appeal by way of review.

1. Disposition. The appeal was dismissed with costs.
2. Review, not rehearing. Under rule 52.11(1) of the Civil Procedure Rules, the circuit judge’s appeal was ordinarily by way of review. The exceptions permitting a rehearing did not apply. Under rule 52.11(3), the appeal could succeed only if the district judge’s decision was wrong or unjust because of a serious procedural or other irregularity. No procedural irregularity was alleged.
3. Wrong exercise of discretion. The appellate court must respect the generous ambit within which reasonable disagreement is possible. It may nevertheless intervene where the lower court failed to consider a relevant matter or gave it no or insufficient weight. It was unnecessary to establish perversity or Wednesbury unreasonableness. The court applied the approach in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, G v G [1985] 1 WLR 647 and Charles Osenton and Company v Johnston [1942] AC 130.
4. Application. The circuit judge was entitled to accept that the excessive payment resulted from a simple mistake and to evaluate the resulting injustice. The district judge had made no findings resolving whether the omission was a mistake or merely a change of mind. The circuit judge correctly concluded that the injustice to the respondent from being held to a payment about 25 per cent higher than intended was considerable, while the claimant’s potential injustice was modest because he could continue to trial. The district judge had failed to consider or give proper weight to a matter of fundamental importance. Her decision was therefore wrong.
5. First ground. The circuit judge’s expression of his own view before analysing the district judge’s reasoning did not invalidate his decision. He acknowledged the limits of review and undertook the required analysis. Rix LJ agreed, adding that the absence of findings on the essential factual basis went beyond a mere failure to state the obvious.

• Court of Appeal (Civil Division): On the second appeal under rule 52.13 of the Civil Procedure Rules, dismissed the appeal with costs: [2005] EWCA Civ 16.
• High Court, Queen’s Bench Division, Reading District Registry: HHJ Charles Harris QC allowed the respondent’s appeal from District Judge Henry, set aside the refusal and granted permission to modify the payment into court.
• District Judge Henry: Refused permission under rule 36.6(5) of the Civil Procedure Rules to reduce the Part 36 payment.