McLoughlin v Jones & Ors

An appellate court reviewing a trial judge’s reasons must assess the judgment as a whole. It may examine reasons based on documents, inferences and inherent likelihood more closely than primary findings based on observed witnesses. If an error removes the substance of the reasons supporting a finding, the judgment will normally be set aside and a retrial ordered. If the error does not affect that substance, the conclusion may stand, taking account of reasons that are implicit as well as express. Errors should be considered cumulatively. A strong challenge to individual passages will not displace findings grounded in credibility and the absence of contemporaneous complaint where those foundations remain intact. The Court of Appeal unanimously dismissed the appeal.

The appellant sued his former solicitors in professional negligence, alleging that before his criminal trial they failed to advertise for witnesses and instruct an enquiry agent. His conviction was later quashed, a retrial ordered and he was acquitted; evidence obtained after trial included a witness relevant to his defence. An earlier appeal had set aside a preliminary foreseeability ruling and remitted the matter for trial: [2002] QB 1312.

The Queen’s Bench Division judge rejected the appellant’s account of pre-trial instructions, preferring the solicitors’ witnesses and relying on credibility, documentary and complaint evidence. The appeal concerned whether defects in some of the judge’s reasoning undermined her overall factual findings and required a retrial.

1. Disposition. The appeal was unanimously dismissed. Arden LJ gave the leading judgment. Neuberger LJ agreed with her conclusion and all her reasons. Pill LJ separately agreed that the appeal should be dismissed.
2. Appellate review. Arden LJ, referring to the need for reasoned decisions identified in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, distinguished between findings based on witnesses whom the trial judge observed and findings based on inferences or documents. Primary findings based on observed witnesses will rarely be overturned. An appellate court is better placed to reach its own conclusion on documentary evidence, inferences and inherent likelihood.
3. Errors in reasons. The appellate court must consider the reasons as a whole, including reasons which can be inferred as well as those expressly stated. If the substance of the reasons cannot stand, the judgment will normally be set aside and a retrial ordered. If the error does not affect the substance of the reasoning, the conclusion should normally stand.
4. Application. The trial judge’s reasoning contained four imperfections. She may have overstated the significance of the availability of Mr Sharman’s contact details and used reasoning that did not necessarily follow from the attendance note of 26 October 1992. Her general statement that the documents supported the defence case was also expressed too broadly. Those matters did not undermine the foundations of her decision: she preferred the evidence of Miss Rowley and Mr Webster, rejected the appellant’s and his family’s credibility, and attached substantial weight to the absence of contemporaneous complaints and supporting records. Those findings depended substantially on credibility and remained open to her on the evidence.
5. Separate observations. Pill LJ considered that some wording was too strong, but found the judgment sufficiently reasoned. He also explained that the Criminal Appeal Act 1968, section 23(1) and section 23(2)(d), required justification for admitting post-trial fresh evidence and for the failure to adduce it at trial. The letter relied on by the appellant gave a favourable gloss to events but did not establish dishonesty or corroborate the solicitors’ account.
6. The court declined to decide whether obvious foreseeability of conviction and imprisonment was sufficient where negligent conduct of a criminal defence allegedly caused wrongful imprisonment and psychiatric injury. The issue raised substantial policy questions and had not been fully argued. The appeal was dismissed.

1. Court of Appeal (Civil Division) dismissed the appeal from the Queen’s Bench Division.
2. Queen’s Bench Division, before Her Honour Mrs Justice Hallett, rejected the allegations that the solicitors had received the alleged pre-trial instructions and decided the claim against the appellant. The citation of that judgment was not stated.
3. Earlier Court of Appeal set aside the preliminary foreseeability judgment and remitted the matter for trial: [2002] QB 1312.