Brown v London Borough of Richmond Upon Thames

On remission after an appeal, the original trial judge may continue where economy and familiarity favour that course. Post-trial disclosure does not by itself require a different judge if a conscientious judge can fairly resume the matter.

Remission is confined to the issue identified by the appellate court. Further evidence remains for the remitting judge, but should generally be excluded where the parties had an opportunity to adduce it at trial. An issue not pursued on appeal cannot be reopened on remission. Costs may be limited for partial success, unsuccessful arguments, unclear grounds and a successful point raised late.

Thomas Brown appealed from a decision of His Honour Judge Lamb QC at the Central London Civil Justice Centre. The Court of Appeal had already allowed the appeal in a judgment handed down on 26 October 2012. The parties then failed to agree consequential matters and made written submissions.

This further judgment addressed whether Judge Lamb should continue, the scope of the remission, whether the respondent could revive a point arising from Dickins v O2 Plc [2008] EWCA Civ 1144, and the costs of the appeal. The central issues were the appropriate judge, the evidence and issues open on remission, and the appropriate costs order.

1. Disposition. The appeal had already been allowed. The court determined the consequential matters by remitting the specified issue to His Honour Judge Lamb QC and awarding the appellant 50% of the costs of the appeal.
2. Identity of the trial judge. Having considered Garratt v Saxby [2004] 1 WLR 2152, the court held that the original trial judge should deal with the matter on remission. Economy and familiarity with the case favoured that course. A conscientious judge would not necessarily have difficulty resuming the matter merely because disclosure had occurred after trial. The judge had also indicated his willingness to continue.
3. Scope and evidence on remission. The remission was limited to considering the impact of the breakdown of the appellant’s marriage on the finding that damages for loss of earnings ceased on 30 June 2004. If necessary, the judge could determine the appropriate period for which the claim should run. Whether to admit further evidence was for the judge, but the court encouraged him not to admit it because the parties had had an opportunity to present evidence at trial.
4. Issue based on Dickins v O2 Plc. The respondent could not reopen a point arising from that decision. The point had not been pursued on appeal, although the trial judge had adopted the approach in Dickins. The judge’s ruling, made after argument at trial, therefore remained in place for this case.
5. Costs. Although the appellant won the appeal, he succeeded on only one of four issues. Unsuccessful arguments concerned Working Time, Grading and the proposed backdating of breach to 2000. The grounds were opaque, and the successful argument emerged late. The appellant was therefore awarded 50% of the appeal costs, to be assessed if not agreed.

1. Court of Appeal (Civil Division): In an earlier judgment handed down on 26 October 2012, the court allowed the appeal. This further judgment determined the consequential matters.
2. Central London Civil Justice Centre: His Honour Judge Lamb QC had conducted the original trial. The matter was remitted to him for consideration of the specified loss-of-earnings issue.