B3/2003/1686 

Neutral Citation Number: [2004] EWCA Civ 341
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MRS JUSTICE COX)
Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 18th February 2004

B E F O R E:

LORD JUSTICE WARD 
 
LORD JUSTICE BUXTON 
 
LORD JUSTICE DYSON 
 
- - - - - - -
 
MR ANDREW GARRATT
Claimant/Respondent
-v-
 
MR MICHAEL SAXBY 
Defendant/Appellant 
- - - - - - -
 (Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MR B CUMMINS (instructed by Royal & Sunalliance Legal North, Manchester) appeared on behalf of the Appellant
MR T HORLOCK QC (instructed by Alyson France, Heswell) appeared on behalf of the Respondent
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J U D G M E N T 
 Wednesday, 18th February 2004

1.	LORD JUSTICE DYSON:  This appeal arises out of a road accident that occurred on 30th June 2001 just off the Headington Road at a point between Headington and Oxford.  The claimant, who was riding a bicycle, collided with a large white Ford Transit tipper truck which the defendant was driving.  The accident occurred a little before 10 am on a Saturday morning.  
2.	The claim was allocated to the fast track and issues of liability were tried in the Oxford County Court by Judge Charles Harris QC.  He found that the defendant had not been negligent and dismissed the claim.  The claimant appealed.  On 11th July 2003 Cox J allowed the appeal and held that the accident was caused by the defendant's negligence, but found contributory negligence on the part of the claimant to the extent of 40 per cent.  
3.	The defendant has been given permission to appeal generally, but principally because Kennedy LJ considered that the apparent disclosure to Cox J, contrary to CPR 52.12(1), of the Part 36 offer that had been made by the defendant raised an important point of practice justifying the grant of permission to appeal.
4.	Before I come to the grounds of appeal, I need to outline the facts and refer to the relevant parts of the two judgments below.  
5.	On the morning in question the defendant was driving the Ford Transit vehicle along Headington Road in the direction of Oxford.  He approached the junction with Morrell Avenue on his left.  The traffic lights were green in his favour and he turned left into Morrell Avenue.  His intention was to turn almost immediately right out of Morrell Avenue into Glebe Street.  
6.	The road layout was justifiably described by Judge Harris as "silly and dangerous".  For motor vehicles approaching the traffic lights from Morrell Avenue there is a stop line before the junction with Glebe Street, but there is a cycle lane for cyclists and a waiting area is designated in Morrell Avenue on the Headington Road side of Glebe Street just short of the traffic lights.  This area is designated by means of a bicycle painted on the road surface.  Thus, when the lights are red for traffic approaching the junction with Headington Road, motor vehicles stop before the junction with Glebe Street, but cyclists who can cycle between the line of motor traffic and the kerb can pass over the junction between Morrell Avenue and Glebe Street, right up to the traffic lights.  
7.	It was common ground that immediately before the accident, when the traffic lights were red against traffic in Morrell Avenue, there was motor traffic stationary at the stop line but there were no cyclists in the bicycle waiting area.  As the defendant turned right from Morrell Avenue into Glebe Street, in front of a line of stationary motor vehicles, the claimant collided with the truck.
8.	Both the claimant and defendant gave evidence before Judge Harris.  The defendant was cross-examined as to why he had not seen the claimant.  He said (page 181 of the bundle): "I'm saying I couldn't see him because either he was low down (and I don't know what cars were in the lane) but if there was a van or something that was a bit taller I would have seen it".  Then a little lower down in the transcript there is the following exchange: 
"Q: So, the only explanation as you see it is that he was going so fast that he covered the distance between you before you had an opportunity to see him?  
A: Well, yes, basically.  Well, what I'm saying is that I looked.  I couldn't see the bicycle.  I crossed and he hit me.  
Q: Yes, but your only explanation is his excess speed.  There can be no other, can there?  
A: Well, there can be another one which I don't know, given that he doesn't know either, is if there were any tall vehicles in this queue of traffic that would have obscured the view further".
Then at page 184: 
"Q: Did you note any high-sided vehicles that may have concealed him?  
A: I didn't particularly notice, but there may have been because, I mean, I had just turned left, there was a big bang, this guy's on the floor seriously hurt, all the other cars had gone, that was it."
Then a little lower down: 
"Q: So, are you saying there was a bus and this is what concealed him?  
A: No, I'm just saying it's all a question of how tall the vehicles were as to how much was concealed".
9.	I turn now to the judgment of Judge Harris.  At paragraph 14 he said:
"What then is the conclusion to be reached from all this?  Neither Mr Saxby had seen Mr Garratt nor had Mr Garratt seen Mr Saxby.  That is curious.  It is certainly curious that the cyclist had not seen the van, the van being very large and tall, if it were possible to see over the van.  It is difficult for the claimant to say that the defendant was negligent in not seeing him, if he had not seen the defendant.  I think it probable that at the critical moment or moments the cyclist was masked by a higher than normal vehicle, which would not be unusual given the number of four-wheel drive vehicles, people carrier vehicles and small trucks, let alone buses and lorries, that there are on the road."
Then at paragraph 18:
"But there is no evidence in this case that there was, in fact, a line of buses or large lorries or anything of that kind.  Certainly the claimant did not think there was.  He said he would have been head and shoulders above the top of any cars.  Mr Saxby does not remember there being any large vehicles.  I think much more probably what happened was that when Mr Saxby looked or glanced to his left to see what was on the way, the cyclist was momentarily behind some single longer than normal vehicle so that he did not see him.  I think the cyclist was probably some way back as well, because he clearly was going quite quickly, I think probably at least twice and possibly more, the speed that Mr Saxby was going and of course, it is not always easy to see the small head of a cyclist when you are glancing across other traffic."
Then at paragraph 20:
"So, in turning right across what turned out to be the path of the oncoming cyclist was Mr Saxby acting negligently?  I do not think he was.  I think he was, in effect, trapped or tricked by the silly and dangerous set up which the highway authority had decided to institute.  I find, on balance, that he had looked to his left and across the oncoming traffic; that he had not seen the cyclist, who may well have been some way back and probably momentarily masked by a car.  So, when he turned slowly, as I find he did, across the path of the traffic which was stationary at the stop line, I do not think it could be said that he was negligent in relation to a cyclist who came down at 20 miles an hour and emerged at the last minute in front of whatever car was at the front of the parked traffic.  
21.  I find that Mr Garratt was going more quickly than was appropriate and I think it was, whatever the theoretical or technical arrangement in relation to right of way, extremely foolish to come quickly out past the front of a line of parked cars at a point when he knew, or ought to have known since he knew the road well, right-turning traffic was to be expected.  The collision was his fault and or not the fault of the defendants."
10.	Cox J accepted the submission made by Mr Horlock QC, for the defendant, that there was no evidence to support a finding that the claimant was masked by a longer motor vehicle.  At paragraph 23 of her judgment she said:
"Furthermore, even if it was permissible for the Judge to make this finding, the evidence leads me to the conclusion that there was no adequate lookout by the Respondent for the following reasons:  
i.    The Appellant had the right of way.  
ii.   The Respondent knew the cycle line was there.  
iii.  The Respondent must have been alive to the  possibility that a cyclist could come along.   
iv.  Even at low speed, there was a significant risk of him striking/injuring a cyclist.   
v.  It was the Respondent's duty to keep a proper lookout, and in my judgment this means looking more than once.  
vi.  At paragraph 18 of the Judgment it was found that the Respondent 'looked or glanced to his left' and that the Appellant was 'momentarily behind' a 'longer than normal vehicle' when the Respondent was glancing across other traffic.  At paragraph 20 of the Judgment, His Honour found that 'he had looked to his left and across the oncoming traffic; that he had not seen the cyclist, who may well have been some way back and probably momentarily masked by a car'.  The only conclusion to be drawn by the Judge's findings is that the Respondent looked/glanced only once to his left only once briefly or cursorily.  
vii.  The Judge's findings in paragraph 18, means the point at which the Respondent looked was when the Appellant was momentarily concealed, at 20 miles per hour, and some way back.  The only inference is the Respondent did not look again.  
viii.  The Respondent should have looked more than the once that the Judge found he had.  His failure to do so was negligent, and causative of the accident.  Therefore I conclude that primary liability is established, and that the Judge was wrong in concluding that the Respondent was not primarily liable."
The Part 36 offer 
11.	There was a clear breach of the provisions of CPR Part 52 rule 12(1) in this case.  It seems to me that if something is included in the documents placed before the appeal judge, then it is "disclosed" to the judge within the meaning of Part 52.12(1).  Thus where, as occurred here, the transcript of the approved judgment also contains a record of the discussion that took place with the judge after judgment was given, and that record includes a reference to a Part 36 offer or payment, then this part of the transcript should be redacted from the document provided to the appeal judge so that the fact of the offer or payment is not disclosed to him or her.  It is regrettable that this obvious step was not taken in the present case.
12.	At the outset of the appeal before her, Cox J said that she had read the papers.  She said nothing about the reference to the Part 36 offer.  If she had seen the reference to it I am satisfied that, like any competent judge, she would have mentioned this to the parties.  I infer that, like many judges, she read the transcript of the judgment but went no further.  No-one would criticise her for that.  
13.	Mr Cummins does not suggest that she did see the reference to the offer.  His point is that the requirement of Part 52 rule 12(1) is mandatory and that justice must be seen to be done; the disclosure was in breach of an important rule and was a serious procedural irregularity which requires the appeal to be allowed on that ground alone.  He relies on CPR 52 rule 11(3)(b), which provides that the appeal court will allow an appeal where the decision of the lower court was "unjust because of a serious procedural or other irregularity in the proceedings in the lower court".  
14.	It is not, therefore, sufficient that there has been a procedural irregularity; the irregularity must be serious and such that justice requires the appeal to be allowed.  On the facts of this case, the judge did not know of the existence of the Part 36 offer and could not therefore have been influenced by it in reaching her decision.  In my judgment, there was a procedural irregularity, but although it was potentially serious, it was not in fact serious because it could not have influenced the judge.  In any event justice does not require the appeal to be allowed on that ground.  
15.	But this appeal has raised the wider question, which is of some importance, of what the judge should have done if she had in fact read the reference in the transcript to the Part 36 offer.  This is a problem which has not been considered under the CPR but did arise under the previous procedural regime.  Under RSC Order 22 rule 7 the relevant provision was:
"... the fact that money has been paid into Court under the foregoing provisions of this Order shall not be pleaded and no communication of that fact shall be made to the Court at the trial or hearing of the action or counterclaim or of any question or issue as to the debt or damages until all questions of liability and of the amount of the debt or damages have been decided."
This rule has been substantially reproduced in CPR 36 rule 19(2), which provides:
"The fact that a Part 36 payment has been made shall not be communicated to the trial judge until all questions of liability and the amount of money to be awarded have been decided."
16.	It will be seen that there is a striking similarity mutatis mutandis between these provisions and CPR rule 52.12(1).  
17.	In Millensted v Grosvenor House (Park Lane) Ltd [1937] 1 KB 717 valuable guidance was given by this court as to what a judge should do if, in breach of the rule to which I have referred, there was communication to him of the fact that money had been paid into court.  At page 727 Farwell J said:
"The purpose of the order is obvious, it was made to prevent the premature disclosure of a fact which was not relevant to the issues to be tried, but the disclosure of which might prejudice one or more of the parties to the proceedings.  It is to be noticed, that the order makes no express provision for the event of an infringement of the rule.  It is, of course, the duty of both judge and counsel to observe the rule, but what is to be done if the rule by inadvertence or otherwise is broken?  In my judgment, this is in every case a matter for the trial judge to determine, having due regard to the object for which the rule was made.  If he thinks it proper or necessary for the due administration of justice, he may refuse to hear the action any further and direct it to be tried before another tribunal.  On the other hand, if he is satisfied that no injustice will be done, he may allow the matter to proceed and if he adopts the latter course, that in itself affords no ground for an appeal from the order which is ultimately made."
See also Gaskins v British Aluminium Company Ltd [1976] QB 524 at 531 C-F per Lord Denning MR.  
18.	Although it has been said on a number of occasions that decisions on pre-CPR procedural rules are not binding for the purpose of interpreting the CPR, there are circumstances in which they may be of considerable persuasive force.  In my view, this is a good example.  The guidance given in Farwell J's judgment should still be followed.  Moreover, in deciding how to exercise their discretion to continue with the hearing or to recuse himself, the judge must have regard to the overriding objective of dealing with cases justly.  CPR 1.1(2) states that dealing with a case justly includes, so far as practicable, saving expense and dealing with the case in ways which are proportionate inter alia to the amount of money involved, the importance of a case and the financial position of each party.  
19.	The problem of how a judge should deal with the improper disclosure of a Part 36 offer or payment is similar to that which arises where there has been an improper disclosure of without prejudice correspondence.  This problem was considered by Stanley Burnton J in Berg v IML London Ltd [2002] 1 WLR 3271.  In a valuable judgment he said:
"20.  The procedure of the court would be greatly hampered and the cost of litigation greatly increased if the court were too easily to come to the conclusion that the viewing of prejudicial irrelevant material necessarily disabled the court from continuing to hear the action.  Prior to [the] Medicaments [case] it was not the case that the court would necessarily come to that conclusion as I have already indicated.  In my judgment Medicaments has affected the test to be applied in such circumstances, but the effect is not as substantial as suggested by the defendant in this case.  The Court of Appeal in the Medicaments case described the effect of the change in law which it was finding and did not regard that change as a substantial change.  It referred to a modest adjustment of the test in Goff [[1993] AC 646: see [2001] 1 WLR 726 to 727 paragraph 85].  
21.  Where a question such as that which has arisen in this case arises, in my judgment there are two aspects to the decision of the court whose recusation is sought.  The first question is whether subjectively the judge considers that he is disabled from fairly continuing with the case.  If he decides that he is so disabled then that normally is the end of the matter.  The matter must be transferred to another judge and it can be only in the rarest cases that an appeal court would intervene to order for the hearing to continue before that judge.  The decision is often said to be one within the discretion of the court, but essentially the decision is a subjective decision.  That, however, is not the end of the matter.  
22.  As I have already indicated, there is a modified test as laid down in the Medicaments, which is an objective test to be applied.  There are circumstances, in my judgment rare circumstances, in which whatever the subjective feeling of the judge in question, he cannot continue with the case without there being a real possibility or a real danger of there being seen to be, by a fair-minded and informed observer, an unfair trial.  
23.  The fair-minded observer will appreciate that the judge is not partial to either party, will appreciate that when the judge expresses his views as to whether or not he can continue, he is expressing those views honestly and unaffected by any connection with either party."
20.	It is for the judge to decide in each case whether the disclosure of a Part 36 offer or payment makes a fair trial impossible and whether justice demands that he recuse himself.  But judges should not be too ready to reach such a conclusion; the delay and extra cost occasioned by a recusal may be very considerable.  Moreover, when exercising their discretion, judges should remind themselves that they ought to have little difficulty in analysing and deciding the issues in the case on their merits without being influenced by their knowledge of the amount of the Part 36 offer or payment.  
21.	To return to the present case, I would dismiss the appeal insofar as it is based on the breach of rule 52.12(1) on the simple ground that the judge was unaware of the offer.  If she had been aware of it, this is a case where I am satisfied that she would have exercised her discretion to continue with the hearing of the appeal.  If she had recused herself there would have been delay and additional costs.  This is a fast track case.  The sum claimed is therefore less than £15,000 and justice would have required that she proceeded with the appeal. 
The appeal on the merits 
22.	Mr Cummins submits that Cox J should not have interfered with the decision of the judge on the merits.  The judge found that the defendant had done all that could reasonably have been expected of him.  He had the advantage, denied to Cox J, of seeing the witnesses.  She was wrong, in effect, to overturn his findings of primary fact.
23.	Mr Cummins reminds us that the circumstances in which a appeal court may do this are very limited: see Assicurazioni Generali SPA v Arab Insurance Group [2002] ECWA Civ 1642, [2003] 1 WLR 177 per Ward LJ paragraphs 195 to 197, but in my judgment Cox J did not reverse any of the judge's findings of primary fact.  It was accepted by the defendant that cyclists had a right of way across the junction between Morrell Avenue and Glebe Street.  There was no challenge to the judge's finding that the defendant glanced only once to his left to see if a cyclist was coming.  Cox J was right to say that there was no evidence to support a finding that the claimant was masked by a longer than normal motor vehicle.  This was speculation on the part of the first instance judge; just as the reference to the possibility of larger vehicles by the claimant in the passages which I have earlier cited was also speculation by him.  
24.	The problem facing the defendant in the present case can be stated quite shortly.  The junction between Morrell Avenue and Glebe Street was dangerous, and was known by the defendant to be so.  This is because the driver of a vehicle turning right into Glebe Street, in front of a line of stationary vehicles, knows that he is driving into the path of cyclists who have a right of way, and his view at Morrell Avenue is obstructed by the stationary vehicles.  When turning right into Glebe Street, therefore, he must travel slowly and keep a careful lookout for cyclists and be prepared to stop very quickly indeed to avoid a collision.  In my judgment, Cox J was right to conclude as she did at paragraph 23 of her judgment.  Mr Cummins submits that even if the defendant had looked up Morrell Avenue, the collision would not have been avoided, but in my judgment the trial judge did not make findings which are sufficient to found such a causation argument, and I reject it.
25.	I would have been inclined to find that the claimant and defendant were equally to blame for this accident: each should have been aware of the danger and each should have seen the other.  I would, therefore, have reduced the defendant's responsibility by 50 per cent, and not 40 per cent, but this difference of view between myself and Cox J is not sufficient to justify interfering with her decision.  
26.	For all these reasons, I would dismiss this appeal. 
27.	LORD JUSTICE BUXTON:  The application for permission to appeal in this case should have drawn attention to Millensted that my Lord has mentioned, and probably also to Berg.  Had that step been taken, I think it unlikely that permission would have been granted to appeal to this court.  Those cases demonstrate, as my Lord has said, that CPR 36.19(2) is not a rule the breach of which necessarily leads to any proceedings thereafter being illegitimate.  In particular, on the facts of this case, where Mr Cummins very fairly says that he cannot suggest that Cox J did indeed see the forbidden material, that rule clearly cannot have that effect.  
28.	Had the single Lord Justice had his attention drawn to those matters, in my view he would not have granted permission because on the substance of the appeal it seems to me impossible to say that Cox J was wrong.  There might be room for more than one opinion as to whether she should have differed from His Honour Judge Harris; but, as my Lord has demonstrated, her decision was not so clearly outside her legitimate area of judgement as to justify interference by this court: a step that in a case such as the present this court will in any event approach only with the greatest caution.  I would therefore dispose of this matter in the way that my Lord proposes.
29.	LORD JUSTICE WARD:  I agree with both the judgments.  The appeal is dismissed.
 (Discussion on costs followed)
30.	LORD JUSTICE WARD:  The question of these costs is highly unsatisfactory.  This was a comparatively small claim.  It is not without significance that the trial costs were assessed by Judge Harris in the sum of £1,700, and yet they have grown like topsy to the point that, without allowance for a success fee, £12,500 are being claimed, whether for the costs of the appeal or the costs of the appeal below as well as the costs of the appeal here is perhaps a little unclear, but some sense of proportionality has to be maintained in these matters.  
31.	We are delighted to see Mr Horlock, but there was absolutely no justification whatever for instructing Queen's Counsel in the court below or in this court, helpful though it might have been for him to tell us what happened in the court below.  
32.	Charges for attending on documents are so wildly exaggerated that we pay no attention to them whatever.  We are told there is a success fee, but we are not told how much.  
33.	The result of all of this is that we are slashing the costs dramatically.  The respondent can have his costs, but they are assessed in the sum of £3,000, including counsel's fee.