Rxdx v Northampton Borough Council & Anr

On a renewed application for permission to appeal, permission may be granted where the proposed appeal raises a respectable argument and has a sufficient prospect of success. The court need not conclude that the appeal will succeed. Where permission is granted in principle, the appeal may proceed on all proposed grounds unless there is a proper reason to restrict them.

The claimant, a young child who suffered permanent brain damage after being found unconscious in a public swimming pool, brought negligence proceedings against the local authority. The authority challenged a preliminary issue decision by Sir Colin Mackay, sitting in the Queen’s Bench Division, that lifeguards had failed to exercise proper vigilance and would have rescued the child sooner if they had identified him as a child at risk.

The authority renewed its application for permission to appeal, arguing that the judge had set the standard of care too high and had wrongly treated the child as obviously at risk. The central issue was whether the proposed appeal had a sufficient prospect of success.

1. Permission granted. The Court of Appeal held that the proposed appeal had a sufficient prospect of success to justify permission, although the court was not expressing a view that the appeal would succeed.
2. The argument was sufficiently respectable because it raised a properly arguable question whether the judge had imposed too high a standard on the authority’s lifeguards. The suggested error concerned the conclusion that the lifeguards should have identified the claimant as a child requiring continued observation.
3. The court recognised the force of the respondent’s submission that the decision depended substantially on findings of fact made by an experienced trial judge after hearing evidence. That did not prevent permission being granted because the authority had identified an arguable challenge to the legal standard applied to those facts.
4. Permission was granted without limiting the grounds. Having decided in principle that the appeal should proceed, the court permitted all the proposed grounds to be pursued. The appeal was estimated to require one day before two judges, one of whom might be a High Court judge.
5. The court did not determine liability, causation or the merits of the proposed appeal.

1. Court of Appeal (Civil Division): On 9 June 2016, the renewed application for permission to appeal was granted on all proposed grounds: [2016] EWCA Civ 672.
2. High Court, Queen’s Bench Division: Sir Colin Mackay, sitting as a High Court judge, determined preliminary issues of liability and causation and found the lifeguards negligent after a trial, with judgment handed down on 11 June 2015.