Bostock v Carillion Construction (Contracts) Ltd & Anor

An appellate court does not rehear a case or substitute its assessment of witnesses for that of the trial judge. Intervention is justified where the judge made an error of law or reached a conclusion that was not open on the evidence. Trial case-management decisions concerning the admission of late evidence attract particular restraint. The appellate court should interfere only where the decision was not reasonably open to the judge. Factors supporting refusal of late evidence may include unfairness to an absent party, disproportionate disruption to the trial timetable, inadequate supporting evidence and doubts about document provenance. Where the proposed appeal could not succeed, permission to appeal must be refused.

The claimant brought proceedings against two building companies for asbestos exposure arising from his employment as an apprentice joiner. The judge in the Middlesbrough County Court found both employers liable.

The first defendants sought permission to appeal, principally challenging the judge’s findings of fact and credibility. They also challenged the refusal to admit, late in the trial, photographs and board minutes intended to support their case concerning asbestos at a block of garages. The central questions were whether the proposed grounds disclosed an arguable error of law or an evidential conclusion unavailable to the judge, and whether the late-evidence ruling was one with which the Court of Appeal could properly interfere.

Lord Justice Hughes refused permission to appeal.

1. Findings of fact. The proposed challenge substantially sought to relitigate the facts and to substitute the appellate court’s assessment for that of the judge who had heard the witnesses. The Court of Appeal does not rehear cases. It may intervene where there is an error of law or where the conclusion reached was not open on the evidence. Substitution of the appellate court’s view of witnesses whom it had not heard would be exceptional. The grounds disclosed no such case [2], [10].
2. Late evidence and case management. The refusal to admit the further photographs and minutes was a judgment for the trial judge to make in the circumstances of the trial. The claimant was absent and would have needed to be brought back to address evidence directed to defeating his claim. Doing so would have caused disproportionate disruption to the court’s list. The documents were unsupported by witness statements, and their provenance was open to question. Even assuming that the defendants could have called their principal witness to address provenance, the remaining reasons independently justified the ruling [7]-[9].
3. Disposition. The Court of Appeal endorsed the conclusion reached by Longmore LJ on the papers that the application merely sought to relitigate the facts and disclosed no detectable error of law. Since the proposed appeal could not succeed, permission to pursue it was refused. Order: application refused [2], [10].

• Court of Appeal (Civil Division): Refused the first defendants’ application for permission to appeal.
• Middlesbrough County Court: His Honour Judge Taylor held both employers liable in the claimant’s asbestos-exposure claim.