Gawler v Raettig

An appellate court will not ordinarily entertain an appeal between private parties once it has become academic. It may do so where hearing the appeal is in the public interest, but that will be very rare when the rights and duties in question are private.

The court should consider whether the issue requires prompt resolution, whether all sides will be properly presented by persons with a real interest in the outcome, and whether another suitable means of resolving the issue exists. Permission may be refused where the proposed appeal is an unsatisfactory vehicle because material arguments were not pleaded or tested by evidence at first instance.

The claimant suffered serious injuries while travelling as the defendant's front-seat passenger. He was not wearing a seat belt and was ejected when the defendant lost control of the car. Gray J reduced agreed damages of £2.7 million by 25% for contributory negligence, applying the guidance in Froom v Butcher.

The parties later agreed that the defendant would neither recover the payments made nor alter the costs position if an appeal succeeded. The proposed appeal was therefore academic between them. After the House of Lords refused permission for a direct appeal, the defendant renewed his application for permission to appeal to the Court of Appeal.

The central issue was whether, and in what circumstances, the court should entertain an academic appeal arising from private litigation.

1. Application for permission to appeal refused unanimously. Sir Anthony Clarke MR, with whom Waller and Smith LJJ agreed, held that an appeal between private parties in private litigation would not be entertained unless hearing it was in the public interest. There was no absolute jurisdictional prohibition, but the exception would be very rare, particularly where the rights and duties under consideration were private.

2. Whether an academic appeal should proceed depends on the circumstances. In addition to the critical public-interest requirement, the court should be satisfied that every side of the argument will be fully and properly presented. Ordinarily this requires counsel and solicitors instructed by a person or group with a genuine interest in the outcome. The court should also consider whether the issue can be resolved appropriately by some other means.

3. The proposed reconsideration of the seat-belt guidance did not require urgent resolution. Although counsel for the claimant remained instructed, there was no evidence that the claimant's legal team represented any continuing interest in the result. The claimant and defendant had no remaining financial or legal interest in the appeal.

4. The proposed reliance on volenti non fit injuria made the case an unsuitable vehicle for deciding wider principles. The defence had not been pleaded in time, and the judge's refusal to permit its introduction was not challenged. A defendant wishing to rely on that defence should plead it so that the claimant has notice and the evidence can address it. Such an issue should ordinarily be examined at first instance rather than through hypothetical appellate submissions.

5. There was consequently no pressing need to determine the proposed issues through an academic appeal, and the public interest did not require permission. The court therefore found it unnecessary to determine whether the guidance in Froom v Butcher should be reconsidered or whether the 25% reduction should be exceeded.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal was refused unanimously: [2007] EWCA Civ 1560.

2. House of Lords: A committee refused permission for a direct appeal because the petition raised no arguable point of law of general public importance.

3. Court of Appeal, paper consideration: Waller LJ refused permission because the proposed appeal was academic, while permitting an oral renewal on notice.

4. High Court, Queen's Bench Division: Gray J reduced the agreed damages by 25% under section 1(1) of the Law Reform (Contributory Negligence) Act 1945. He granted a certificate for a proposed direct appeal under section 12 of the Administration of Justice Act 1969, but refused permission to appeal to the Court of Appeal.