Faunch v O'Donoghue & Anor

On a renewed application for permission to appeal, permission may properly be granted where a trial judge adopts a material factual scenario that was not canvassed during the trial. The witnesses and parties must ordinarily have an opportunity to address the implications of such a scenario and to marshal their arguments. The appellate court remains reluctant to interfere with factual findings, but serious procedural unfairness and potentially grave consequences for a party may justify permission. The question whether supplementary expert evidence should be admitted is for the full court hearing the appeal.

The claimant brought a personal injury action arising from a motorway collision involving the two defendants’ vehicles. Liability was tried between the defendants alone because the claimant was expected to recover her damages from one or both of them. The Recorder found for a factual account that had not been advanced by either defendant and that differed materially from the evidence of the principal witnesses.

The first defendant sought renewed permission to appeal, arguing that the trial process was unfair because the new factual hypothesis had not been put to the witnesses or addressed by the parties. The claimant and second defendant were not represented on the renewed application. The central issue was whether the circumstances justified permission to appeal against findings of fact.

Application granted. The Court of Appeal granted permission to appeal against the liability judgment.

1. The court acknowledged its usual reluctance to interfere with findings of fact made after a trial. That reluctance did not prevent intervention where the trial process may have been unfair.
2. The Recorder had adopted a factual hypothesis about the collision that had not been canvassed with the lay or expert witnesses. It differed materially from the account given by the independent witness, whose evidence the Recorder preferred in part. The supplementary expert report suggested that the new hypothesis had further consequences bearing on the reliability of that evidence.
3. A trial should not ordinarily culminate in a material conclusion which has never been put to the parties or witnesses, where neither the witnesses nor the parties have had an opportunity to address its implications and marshal their arguments.
4. The potential consequences reinforced the need for permission. The result was likely to bind the first defendant in relation to his own serious injury claim against the second defendant and might be fatal to any recovery.
5. The grant was confined to permission to appeal. The full court would determine whether the supplementary expert report should be admitted.

• Court of Appeal (Civil Division): on 28 June 2013, granted the renewed application for permission to appeal against the judgment of Mr Recorder Murphy in Southampton County Court following the liability trial.
• Southampton County Court: judgment given on 29 November 2012 after a trial on liability arising from the motorway collision.