In dismissing A’s appeal, the court illustrated the need to carefully cross-examine a witness and make detailed submissions, as opposed to raising issues on appeal. It also demonstrates the need to invite the trial judge to clarify/amplify his reasons.

Background

A sought an injunction to prevent his neighbours building an extension, alleging the works would encroach on his property. A gave a cross-undertaking in damages. The nominated single joint expert decided there was no encroachment.

The Respondents undertakings were discharged. They sought damages on the cross-undertaking, which included the cost of moving out of their home, plus the increased costs of materials and a new builder.

At trial, HHJ Jarman, accepted the Respondent’s evidence entirely, holding that the husband (“R1”) was a patently honest person. A was ordered to pay damages assessed as £22,860. Birss J dismissed A’s appeal.

Amplification / Clarification

A judge has a duty to give reasons – Flannery v Halifax Estate Agents [2000] 1 WLR 377 at 381 g-h. Although failure to give adequate reasons was put at the forefront of A’s case relating to damages, his counsel made no attempt to invite the judge to consider whether to amplify his reasons before complaining about their inadequacy on appeal. That was wrong as contrary to guidance given in Paulin v Paulin [2010] 1 WLR 1057 (paragraph 30(a)).

Birss J held that “If the appeal court rejects the submission that the reasons are inadequate then that is one thing, but if the reasons are lacking then it does not follow that the right thing to do is conduct a rehearing on appeal without the benefit of hearing the witnesses. The right thing to do might be to direct a retrial, which would have been entirely unnecessary if the judge had had the opportunity to amplify his reasons.”

Interesting cost arguments could have resulted, had A succeeded and a retrial been ordered; namely, wasted costs, for unreasonably or negligently requesting amplification or clarification.

Ensure good points are taken

A suggested that one could not tell whether the judge had erred in law because the judge had not set out the propositions of law (paragraph 2 of Flannery principles). However “the legal propositions which related to the issues the judge had to decide were entirely uncontroversial and straightforward….” A took many misconceived or weak points and would have been better to focus on strong arguments.

Credibility of witnesses

A challenged the findings about R1’s credibility. Birss J held that “all counsel said about this in the context of” R1’s “credibility at trial was that the judge was invited to treat the answer that there was a tenancy agreement with some scepticism. When advanced like that, I cannot see any justification for criticising the judge for not addressing that particular point when he assessed” R1’s credibility. Careful submissions on detailed cross-examination appear necessary. As the Judge “gave solid reasons for finding” R1 “to be credible” the assessment was not flawed. That was unsurprising given the classic statement in Thomas v Thomas [1947] A.C.

Many of A’s arguments were not put to the Respondents in cross-examination nor fully explored. On that basis the findings could not be challenged. The same demonstrates the need to carefully and fully test a witness in cross-examination.

Argue the point properly

Points should be fully taken and argued at trial. It is inappropriate to leave the points for appeal. Birss J held that “It is always possible to find a minor submission which a judgment does not address. To magnifying this point on appeal and then submit that the judgment does not answer the magnified version of the point does not establish a basis to overturn the judgment.”

Careful preparation of the arguments

It was held that “The appellant contends that the judge seriously misunderstood the evidence about whether work stopped on site. Part of this submission was based on an accidentally mistaken quotation from the judgment. That point was withdrawn.” Fastidious preparation is desirable to avoid such embarrassing mistakes.

Careful presentation of evidence

Assiduous preparation, including obtaining and disclosing supporting documents is vital. Briss J held “It might be said that the respondents were taking a risk in the litigation because they had no fall back material to rely on if” R1’s “credibility was not accepted.” Although the Respondent’s relied on the SJE report, they could have strengthened their case by disclosing more documentation and obtaining supporting witness statements, e.g. from the builder who completed the project.

Discharge of the overriding objective

In accordance with the overriding objective the Judge was entitled to deal with the issue of the position of the gas flue. The SJE had “given an admissible opinion, on which the judge was entitled to rely, about the location of the flue and its status as far as the relevant building regulations and gas safe regulations were concerned. It was clearly a matter in dispute between the parties and by resolving it the judge saved the parties from coming back to court another time.”

The Judge was also entitled to reflect on any point prior to the order being sealed. He was not functus officio after he delivered judgment. Again that was unsurprising given CPR r 40.2(2)(b) and Re L (Children) (Preliminary Finding: Power to Reverse) [2013] 1 W.L.R. 634 SC.