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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Adams v Autolec Diesel Services (Wales) Ltd [2001] EWCA Civ 801 (18 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/801.html Cite as: [2001] EWCA Civ 801

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA COUNTY COURT
(Mr Recorder Vosper QC)

		Royal Courts of Justice Strand London WC2 Friday 18 May 2001

1. LORD JUSTICE RIX: This is an application for permission to appeal the judgment of Mr Recorder Vosper QC given at the County Court in Swansea on 1 December 2000.
2. An application for permission to appeal was made to the learned recorder himself about a fortnight later under detailed written submissions. It was no doubt because of the nature and detail of those submissions that the recorder himself responded in similar detail in writing a week later. The matter seems to have been dealt with on paper, and the recorder gave detailed reasons of his own as to why he declined to give permission. Those reasons are therefore available to me as well as the recorder's judgment, and they have been referred to today by Mr Bryan Thomas, who has been very helpful in making clear submissions to me this morning.
3. This was a personal injury claim arising out of a whiplash injury caused by a car accident, where liability was accepted and the trial was on quantum. In essence, Mr Thomas's case on behalf of the defendants is that the judge had gone wrong repeatedly in his findings and assessment of quantum because he had failed to deal properly with the basic and central submission of the defendants. That was that the credibility of the claimant, Mr Adams, was seriously in dispute and that, in effect, his evidence should have been rejected as being incredible and unreliable.
4. On this application, therefore, Mr Thomas has made it clear to me that, if granted permission to appeal, the defendants' case in the Court of Appeal would essentially be that the trial on quantum would have to be reheard by another judge. He had a fall-back submission that, in respect of a period from December 1997 to July 1999, which fell within a period for which the judge gave past loss of earnings, the quantum of his assessment was in any event required to be looked at again in the light of evidence that during that period the claimant was suffering disablement due to a diagnosed condition of osteo-arthritis which he had himself claimed to make him unfit for any work.
5. The defendants' application (premised, as it is, therefore, essentially upon the submission that the judge had erred in dealing with the credibility of witnesses) nevertheless seeks to avoid the riposte that that is an issue upon which permission to appeal is very rarely given, bearing in mind that only the judge at trial is really in a position to assess credibility and that the Court of Appeal is not in the same position and in any event is only conducting a process of review rather than of rehearing. It seeks to deal with that riposte by submitting that the judge's real error here is, not so much to err in his assessment of credibility, but rather to fail to take account of the argument on credibility at all.
6. Mr Bryan has illustrated, both in his written and in his oral submissions this morning, the way in which he submits the issue of credibility impinges, now here, now there, but in any event upon the issues which the judge had to decide and, in particular, on the three issues which he highlighted: namely, the reason for the failure of Mr Adams' company, his reasons for turning down an offer of part-time work from B & Q, and the question of the osteo-arthritis to which I have already referred.
7. It seems to me, however, that the judge has not ignored the question of credibility at all. On the contrary, he devotes an extended passage of his judgment (pages 22 to 27) to the question of credibility and, in particular, to four particular points relating to credibility which were addressed to him in closing submissions. He deals with each of those four points in detail and gives a view of how he regards them, but ultimately says that he does not need to make positive findings one way or the other. In effect, what he says is that, even if he were to find against the claimant on each of those four points, it would not directly affect the findings of fact elsewhere in his judgment. I put to Mr Thomas that in effect the judge was saying, at any rate as to something like two of the points, that he was prepared to find that Mr Adams' evidence was not to be believed, but that he did not need to go that far in order to resolve the disputes which he needed to resolve.
8. I have to confess that, for myself, I can see nothing wrong with the learned recorder's approach. The fact is that, on the critical question of whether Mr Adams' company failed, at least in material part, by reason of his injury or, as was submitted by the defendants, for entirely other reasons connected with his relations with his co-director and essential partner in the business (the submission being, in effect, that the business was doomed to fail in any event because of the breakdown of those relations), the defendants' case on that point was critically undermined by their own witness, namely Mr Adams' co-director and partner, Mr Lawrence. Mr Lawrence had said to the judge, at the end of his cross-examination as I understand it, that his belief was that, for all the difficulties that he and his partner had been going through and continued to go through, they would have patched things up and kept the business going had it not been for Mr Adams' injury and the additional strains that that put upon both their relationship and the fortunes of the business.
9. I agree with the recorder that, in the light of that answer, the defendants' essential approach to the claim failed. It failed not only on their critical argument that the business was doomed in any event, but it also failed crucially on the other arguments by which they sought to attack Mr Adams' credibility in general. It was Mr Adams' case that it was his injury which had led to the failure of his business. If, therefore, one considers, outside the detailed facts of the case, the inherent probabilities of the matter, there was nothing in Mr Adams' background or in the general state of that business (outside this question of the difficulties of the relationship between the co-directors) which would really support the case that Mr Adams had turned from being a hardworking man (who, as the judge found, was no shirker of work, and who had been able to enjoy the success of his company and, through it, had been able to support not only himself but other members of his and/or Mr Lawrence's family) into a shirker who was merely looking for an excuse to put an end to his business and throw the cost of his idleness upon the defendants.
10. As for the other main, but still subsidiary, grounds of appeal addressed in the written and oral submissions, I turn first to the question of the offer of part-time work from B & Q. The judgment fairly recounts how Mr Adams' first explanation for declining this work was that it would not provide an income greater than the benefit payments that he was already getting. The judge found that it would, but only marginally so. The judge was prepared to accept that the claimant also had in mind the risk that, if he lost that part-time work, then he would lose half a year's benefits and would also be at risk as to the support to his mortgage payments. Overall, the judge was prepared to accept that the defendants had not proved, the burden being upon them, that in that respect Mr Adams had failed to fulfil his obligation to mitigate his loss.
11. That question of whether a duty of mitigation has been fulfilled or broken (depending, as it does, upon the reasonableness of the claimant's actions in the light of all the circumstances) presents a very real and, as is well-acknowledged, difficult burden upon a defendant to prove unreasonableness. If not itself a question of discretion, it is very akin or analogous to a question of discretion, for the judge has to form a view in all the circumstances on whether the burden has been met. I cannot see any real prospect, on appeal, of the Court of Appeal coming to a different conclusion on that question.
12. Finally, I turn to the question of the osteo-arthritis. This arose during a period between December 1997 to July 1999. I confess that, on reading the material in the papers, I was left (as, indeed, the judge appears to have been left: see his reasons for refusing permission to appeal on this question) uncertain as to the real way in which the defendants sought to use this point. Ultimately, it remained uncertain to the judge, as it does to me, whether they were seeking to say that this was an example of the claimant's exaggeration of his condition and therefore went to his credibility, or quite the reverse of that, and his evidence was to be accepted in full force and therefore went to reduce his loss of earnings during that period on the basis of a break in the chain of causation.
13. In the circumstances, I am not at all surprised that the judge dealt with the matter relatively briefly in the way that he did in his judgment at the foot of page 18. I am also satisfied that the additional reason given by the judge in his reasons for refusing permission to appeal, in the light of the written submissions made in the defendants' application to him, is a perfectly satisfactory explanation. It is that during that period, to the extent that the osteo-arthritis was disabling, the claimant would have been carried by his partner and others in the company business if the company business had survived, as he found it probably would have done but for the claimant's injury.
14. In deference to Mr Thomas's able submissions on behalf of the defendants, I have considered this application in some detail, as I hope this judgment of mine indicates. Nevertheless, it seems to me that the appeal which the defendants seek to bring is essentially bound up with questions of the evaluation of the oral evidence given before the judge. Not only do I think that there is no real prospect of success on appeal nor any other reason why permission should be given, but I am also, for my part, impressed by the detailed reasons given by the judge, both in his judgment and in his reasons for refusing permission to appeal.
Order: application for permission to appeal refused.