Drury v Rafique & Anor

An appellate court will not overturn a trial judgment merely because it does not address every submission or analyse evidence at the level of detail preferred by the unsuccessful party. The judge must give reasons sufficient to explain the result and permit effective appellate review. The extent of the duty depends on the subject matter. Where credibility is central, a clear finding accepting a witness may suffice if supported by cogent reasons; disputes involving expert evidence and analysis require engagement with the competing cases. A party alleging inadequate reasons should first seek clarification or amplification. Damages on a cross-undertaking are assessed on contractual principles. A trial judge may resolve a related issue arising in the proceedings where doing so accords with the overriding objective.

The appellant and respondents were adjoining homeowners involved in a boundary dispute arising from building works and a gas flue. The appellant had given a cross-undertaking in damages when interim relief restricted the respondents’ building works. After the undertaking was discharged, the County Court awarded the respondents damages for additional building costs, alternative accommodation, storage, painting, a cancelled Sky contract and transporting their children. It also ordered relocation of the flue and made an indemnity costs order under Part 36.

The appellant appealed, alleging inadequate reasons, misunderstanding of the evidence, error in relying on expert evidence concerning the flue, and procedural error in making the indemnity costs order.

1. Appeal dismissed. The County Court judge was entitled to accept Mr Rafique as an honest witness and rely on his evidence, supported by the joint expert’s opinion. A judgment need not address every subsidiary submission or analyse each item of a broadly presented damages claim separately, provided it explains the findings necessary for the result.
2. The duty to give reasons is a matter of due process and fairness. Its content depends on the subject matter. A straightforward credibility dispute may be resolved by a clear finding as to which witness is believed, whereas a dispute involving reasoning, analysis or expert evidence requires the judge to explain why one case is preferred. The principles stated in Flannery v Halifax Estate Agents [2000] 1 WLR 377 were applied.
3. Where inadequate reasons are alleged, the unsuccessful party should ordinarily invite the trial judge to amplify them before appealing. That course may avoid an unnecessary rehearing or permit a retrial to be ordered without the appellate court deciding the case on a cold record. The guidance in Paulin v Paulin [2010] 1 WLR 1057 was followed.
4. Damages on a cross-undertaking are assessed on contractual principles, as stated in Abbey Forwarding v Hone [2014] EWCA Civ 711. On the evidence, the judge was entitled to find that the undertaking caused the claimed delay and resulting losses, including the period of alternative accommodation.
5. The judge was entitled to determine the gas-flue issue in the existing proceedings. The joint expert had given admissible evidence about the flue’s location and compliance with relevant regulations, and resolving the issue avoided further litigation.
6. The indemnity costs order was permissible. The order had not been sealed, both parties had made written submissions on the Part 36 issue, and no further oral submissions were necessary.

• High Court (Chancery Division): appeal from the County Court at Cardiff dismissed. Permission to appeal had been granted by Garnham J on 9 March 2018.
• County Court at Cardiff: HHJ Jarman QC awarded the respondents £22,860 in damages, ordered relocation of the gas flue and made costs orders including indemnity costs under Part 36.