Surrey County Council v Vause

An appeal requires an arguable legal or evaluative error, not merely strong disagreement with the trial outcome. A trial judge’s assessment of negligence and causation, particularly where it depends substantially on evidence heard first-hand, should not be second-guessed on appeal where the conclusions were reasonably open on the evidence. The discretionary power to abridge the period for a Part 36 offer is part of the Part 36 regime. A costs decision will stand where the judge considered the significance and costs consequences of an issue on which the successful party failed, even though another judge might have exercised the discretion differently.

The claimant succeeded at trial before District Judge Smart in a claim concerning the late Mrs Vause’s fall, injuries and subsequent death. The defendant council challenged the finding of liability and sought permission to appeal on two costs issues.

The liability challenge alleged that the judge had imposed an unrealistic and excessively managerial standard on the claimant’s care worker and had reached unsustainable conclusions on causation. The costs challenges concerned the abridgment of the period for a Part 36 offer and the decision to award the claimant costs in full despite failure on an issue concerning the need for two carers.

1. Permission to appeal refused. The council’s sense of grievance about the trial result did not provide a basis for an appeal. The proposed appeal had no real prospect of success.
2. The finding of negligence was reasonably open to District Judge Smart. Mrs Vause was frail, at high risk of falling, and specifically liable to lose balance towards the left. It was not unrealistic or impermissible micromanagement to conclude that the care worker should have maintained undivided attention and positioned herself on that side.
3. The causation findings were also open to the trial judge. On the evidence, attentive positioning and prompting would probably have prevented the fall, or enabled it to be managed without injury. The High Court was not in a realistic position to interfere with evaluations materially based on witnesses and expert evidence heard at trial.
4. The reference to French v Groupama Insurance Co Ltd was not determinative. That case concerned offers which had not qualified as Part 36 offers. The present case concerned an offer which qualified because the district judge exercised the discretionary power within the Part 36 regime to abridge the relevant period. In the absence of the district judge’s reasons, there was no proper basis to conclude that the two-day abridgment was outside that discretion.
5. The costs order was likewise within the trial judge’s discretion. The judge could take account of the claimant’s failure on the two-carer issue, including the costs and length of trial generated by it, without being obliged to reduce the claimant’s recovery. It was sufficient that the issue had been considered and proper weight had been given to it.

The judgment records that District Judge Smart determined the claim at trial in July 2017. The High Court considered the council’s application for permission to appeal and dismissed it.