Owens v Noble

Where a case is remitted after an error of law, it is ordinarily convenient and economical to return it to the same tribunal, unless there is a good reason to do otherwise. A trial judge is not disqualified from deciding a fraud issue merely because the alleged fraud may have affected the original decision. The judge must decide the issue on the evidence placed before the court, assessed alongside the evidence at the first hearing. A prior reaction to apparently incriminating material does not establish apparent pre-judgment where the judge later recognises that an explanation may exist and there is no proper basis for fearing an impartial decision. Where the respondent succeeded on the principal issue in the appeal, it was just to make no order for the appeal costs if fraud were later proved and damages reassessed.

The claimant’s damages had been assessed in proceedings in the Queen’s Bench Division before Field J. On the appeal, the Court of Appeal had decided that the issue of alleged fraud should be tried before any reopening of the damages assessment. This ruling addressed the parties’ submissions on the proposed consequential order.

The respondent argued that the fraud issue should not be remitted to Field J because he might appear to be both witness and judge or to have pre-judged the issue. The appellant also challenged the proposed costs order, contending that a finding of fraud should entitle him to the costs of the appeal. The issues were whether the fraud question should return to the original trial judge and what order for appeal costs should follow if fraud were proved.

1. Remission. The fraud issue was remitted to Field J, if he could be made available. The Court rejected the analogy with a judge deciding contempt arising from events witnessed in court. The closer analogy was the remission of a case to a County Court or Employment Tribunal after an error of law. It is ordinarily convenient and economical to return the case to the same tribunal unless there is good reason not to do so.
2. Impartiality. Field J would decide the fraud issue on the evidence put before him, compared with the evidence at the original hearing. His familiarity with the reports and transcripts placed him in a better position to make that comparison. His earlier surprise on seeing video films did not demonstrate pre-judgment, since he later acknowledged that there might be an explanation for the apparent improvement in the claimant’s condition and arranged a hearing at which it could be advanced. No well-informed observer would fear that he would determine the fraud issue other than impartially.
3. Costs. If fraud were proved and damages had to be reassessed, there would be no order for the costs of the appeal. The appellant had argued that the evidence was sufficiently strong to justify reopening the damages assessment without first trying fraud. That argument failed. The respondent succeeded on the main issue, namely that fraud had to be tried before any reopening of the damages assessment. It was therefore unjust to require the respondent to pay the appellant’s appeal costs even if fraud were subsequently established.

• Court of Appeal (Civil Division): On appeal from the Queen’s Bench Division before Field J, in [2010] EWCA Civ 284, the Court decided that the fraud issue should be tried before any reopening of the damages assessment. In this consequential ruling, the fraud issue was remitted to Field J, if available, and the Court ordered that there be no order for the appeal costs if fraud were proved and damages reassessed.