Hicks v Russell Jones & Walker

An appellate court may, while an appeal remains pending, refer a contingently relevant issue back to the trial judge under the Civil Procedure Rules, Rule 52.10(2)(b), where that course is just and convenient. The power is not confined to referrals made after the appeal has been heard. A trial judge may supplement a final judgment with findings on an issue not previously addressed, provided the original order is not altered. The course is particularly suitable where the evidence was before the judge, the trial is recent, and the judge is willing to proceed. Directions should identify the issue in simple, general terms and leave detailed case-management matters to the trial judge.

Mr Hicks appealed from an order made by Henderson J on 27 April 2007 in a solicitor’s negligence action. The judge found that Russell Jones & Walker had breached contract but that no loss resulted. He awarded £5 nominal damages, dismissed the remainder of the claim and ordered Mr Hicks to pay the defendants’ costs, subject to adjustments.

Permission to appeal was granted on issues concerning the failure to obtain valuation evidence and timely instructions from leading counsel. The respondents sought further findings from the trial judge before the appeal was heard. The central issue was whether the Court of Appeal could refer the contingently relevant questions back to the judge after judgment and the drawing up of the order.

The Court of Appeal unanimously granted the respondents’ application and directed that an issue be referred to Henderson J. The substantive appeal remained pending.

1. The power under Civil Procedure Rules, Rule 52.10(2)(b), is sufficiently broad to permit referral of an issue to the lower court before the appeal is heard. It may be used where the issue is only contingently relevant, provided referral is just and convenient.
2. [2005] EWCA Civ 1454 provided a close analogy. The finality of a judgment and drawn order did not prevent the trial judge from giving further reasons and findings, provided the further judgment supplemented rather than altered the original order. It would be artificial for an appellate court to disregard findings obtained through such an inquiry.
3. [2002] EWCA Civ 605 was distinguished. That guidance concerned inadequate reasons. The present case concerned a judgment with adequate reasons which arguably failed to address issues arising contingently if part of the reasoning proved wrong.
4. Referral was appropriate because the trial was recent, the judge had the evidence before him, and he had indicated his willingness to proceed. The course furthered the overriding objective. The issue should be stated in simple and general terms, leaving the judge to determine which findings were necessary and what procedure was appropriate. Written submissions and a timetable were directed; oral submissions and further evidence were left to the judge’s discretion.
5. The supplementary judgment would operate as an addition to the original judgment. If either party wished to challenge a new finding, it could seek permission to amend the relevant appeal notice.

• Court of Appeal (Civil Division): In [2007] EWCA Civ 844, granted the respondents’ application and referred a contingently relevant issue to the trial judge under Civil Procedure Rules, Rule 52.10(2)(b).
• High Court of Justice, Chancery Division: Henderson J found a breach of contract but no causative loss, awarded £5 nominal damages, dismissed the remainder of the claim and made a costs order.