Horridge v Weston Birt School Ltd

Permission to appeal may be granted where a substantive issue has a real prospect of success. An issue concerning loss of earnings is arguable where the trial judge may not have considered whether the claimant acted reasonably in following medical advice to stop work. A challenge to a costs assessment based only on a lack of reasons may be insufficient on its own where the judge appears to have adopted submissions whose correctness is not challenged. However, such a costs issue may properly be included where permission is granted on another issue and the additional point has sufficient arguability.

The claimant, a schoolmaster, brought a personal injury claim against his employer after tripping on a darkened stage and injuring his knee. Following judgment in the Leeds County Court, he renewed his application for permission to appeal.

The proposed appeal concerned loss of earnings arising from his decision to stop examination-marking work, and the reasonableness of a 100 per cent conditional-fee-agreement uplift, which the trial judge had reduced to 30 per cent without detailed reasons. The Court of Appeal considered whether either or both points had sufficient merit to proceed.

The Court of Appeal granted the renewed application for permission to appeal on both the substantive loss-of-earnings issue and the costs issue.

1. Loss of earnings. Lord Justice Rix considered that the proposed challenge had a real prospect of success. Lord Justice Keene identified evidence that the claimant’s general practitioner had advised him to stop the examination work to allow his knee to settle. It was arguable that the trial judge had not addressed whether it was unreasonable for the claimant to act on that advice. The issue was not so obvious that permission should be refused.
2. Conditional-fee uplift. The parties accepted that reasonableness had to be assessed at the time the agreement was made. The trial judge had reduced the proposed 100 per cent uplift to 30 per cent and had given only brief reasons. Lord Justice Rix stated that, if this had been the only ground, he would have been extremely reluctant to grant permission because the judge could be understood to have adopted the defence submissions, and no error in those submissions had been identified. Since permission was being granted on the substantive issue, however, there was just sufficient merit to extend permission to the costs point.
3. The court encouraged the parties to consider settlement, given the relatively small sums involved, and noted the availability of the Court of Appeal’s mediation scheme. The formal order was: Application granted.

• Leeds County Court: His Honour Judge Taylor QC gave judgment on 21 May 2007 in the claimant’s personal injury claim.
• Court of Appeal (Civil Division): on a renewed application, granted permission to appeal on the loss-of-earnings and costs issues.