Judd v Hemingway

Permission to appeal may be granted where the proposed criticisms of the lower court’s reasoning are arguable and disclose a real prospect of success. The Court of Appeal need not determine the underlying negligence issues at the permission stage. The judgment also illustrates the court’s concern that parties should consider proportionate alternative dispute resolution before incurring the greater costs of an appeal.

The claimant, a motorcyclist, was seriously injured when he collided with the defendant’s tipper truck as it turned right across the carriageway. The Queen’s Bench Division, before His Honour Judge Seymour QC, made findings about the safety of commencing and continuing the turn, including that failure to keep turning sideways to observe the crossing road was not negligent where a reasonable assessment had been made before the manoeuvre began.

The claimant sought permission to appeal. He argued that the judge had failed to account for the motorcycle’s visibility, speed and stopping opportunity, and had treated the driver’s duty to observe as ending when the manoeuvre commenced. The respondent did not appear. The issue was whether those criticisms were sufficiently arguable to justify an appeal.

1. Permission granted. Ward LJ held that the criticisms of the lower court’s findings were arguable and that there was a real prospect of success.
2. The proposed appeal raised substantial questions about the application of the duty of care during a large, slow-moving vehicle’s right-turn manoeuvre. In particular, it challenged whether the judge had properly considered that the motorcycle was visible for about 50 metres and whether a careful driver had a continuing duty to check that it remained safe to cross the carriageway.
3. The Court did not decide those negligence or contributory-negligence issues on the permission application. It decided only that they warranted appellate consideration.
4. Ward LJ observed that the case was particularly suitable for mediation because only a small set of papers would be needed and the costs of alternative dispute resolution should not be significant. The court expressed regret that settlement had not been attempted before the greater costs of the appeal were incurred.
5. Carnwath LJ agreed. The order was: application granted.

• Court of Appeal (Civil Division): Permission to appeal granted on the basis that the proposed criticisms were arguable and had a real prospect of success.
• Queen’s Bench Division: His Honour Judge Seymour QC made the findings challenged on appeal concerning the defendant’s right-turn manoeuvre and observation of the crossing carriageway.