Case - Garratt v. Saxby

[2004] 1 WLR 2152, Court of Appeal - Brian Cummins

Where the existence of a Part 36 offer had been disclosed to a judge of the appeal court, it was for the judge to have determined whether that disclosure made a fair hearing possible or whether justice required the judge to recuse herself.

The defendant (S) appealed a decision that he had been liable, subject to contributory negligence, for the personal injuries sustained by the claimant (G) in a road traffic accident. G's claim was initially dismissed on the finding that there had been no negligence on the part of S. G's appeal from that decision was allowed to the extent that S was held to have been negligent but that G had contributed to the accident. This appeal from that decision had been brought on the grounds that, contrary to CPR r.52.12(1) , a Part 36 offer had been inadvertently disclosed to the judge hearing the appeal as part of the appeal documents. Accordingly, S argued that (1) that procedural irregularity was so serious so as to require interference with the judge's decision; or alternatively (2) the judge was wrong to have interfered with the trial judge's decision on the merits of the case.


HELD: (1) The disclosure to the judge of the existence of a Part 36 offer, on an appeal, was a procedural irregularity that had the potential of being so serious so as to allow an appeal from that decision. In the instant case however there was no evidence that the judge actually read the documentation that established the existence of the offer and it was open to assumption, from the fact that she did not mention it, that the judge had no knowledge of the offer. (2) Had the judge been aware of the Part 36 offer the guidance set out in Millensted v Grosvenor House (Park Lane) Ltd (1937) 1 KB 717 would have been applicable. Accordingly, the judge should have dealt with the case justly and with regard to the overriding objective. The judge had to determine whether the disclosure of the offer made a fair trial possible, or whether justice required her to recuse herself. The judge, in exercising her discretion, was enitled to take into account the additional time, cost and difficulty involved for all concerned if the hearing were to be aborted. In the instant case the judge was unaware of the offer, but had she been aware of it there was no doubt that she would have exercised her discretion and continued to hear the appeal. (3) Having continued to hear the appeal, the judge was entitled to interfere with the trial judge's decision on the merits of the case and find that S had been liable for G's injuries subject to a finding of contributory negligence. .
Appeal dismissed.

Counsel:
For the appellant: Brian D Cummins
For the respondent: Horlock QC, Tim
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