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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 >> Clerey v Surrey Bituminous Supplies Ltd [2001] EWCA Civ 338 (12 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/338.html Cite as: [2001] EWCA Civ 338

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EPSOM COUNTY COURT
(His Honour Judge Hull QC)

		The Royal Courts of Justice The Strand London WC2A
		Monday 12 March 2001

Monday 12 March 2001

1. LORD JUSTICE JUDGE: On 25 March 1994 this claimant was driving his car along the A287 Haslemere to Hindhead road when he collided with a stationery bus. He suffered personal injuries and, subject to establishing liability, his damages were agreed at £16,000, inclusive of interest. The action was brought not against the bus driver or the bus company, but against civil engineering contractors, Surrey Bituminous Supplies Limited, who were carrying out road improvements at the material time.
2. On 16 November 2000, after a hearing which lasted either for three days or part of three days, and in the course of which a number of witnesses gave evidence, His Honour Judge Hull QC dismissed the claim. In a meticulous judgment he held that the claimant's negligent driving, which was too fast in all the circumstances, was the sole cause of the accident, and he dismissed the claim with costs.
3. The central point in the submission in support of the application for permission to appeal arises from the fact that the judge is said to have attached enormous weight to the oral evidence of a witness called Reginald Oakes. At the material times Mr Oakes was a director of the defendant company. He had made witness statements on 8 January 1998 and 3 November 2000, but when he gave evidence he was allowed to describe conditions and, in particular, the layout of signs along the road improvement works at the time of the claimant's accident, which had not been referred to in either of his earlier statements. It is fair to put the submission in context by noting that the points about which Mr Oakes gave evidence, and about which complaint is now made, were notified in advance in the pleadings, and that the layout of the road was the subject of evidence of at least two drivers who came along to the scene immediately after the accident had taken place, who had themselves been overtaken by the claimant on his way to meet the bus.
4. It was suggested to the judge that the evidence of Mr Oakes was fabricated. The judge rejected that suggestion in robust language which it is unnecessary to repeat. In a detailed skeleton argument, supplemented this morning by a short further paper, Mr McCormick on behalf of the claimant argues that his client was put at an enormous forensic disadvantage by the late and, he says, unexpected and inappropriate arrival of this part of the evidence of Mr Oakes. We understand the forensic difficulties. Mr McCormick objected to the evidence when Mr Oakes came to give it, which was, as we understand it, in the middle of the second day; but, whether that is right or not, at the end of all the evidence. It was, said Mr McCormick to us, and we understand also to the judge, a "late ambush". The judge rejected that submission. So the evidence was allowed to be given.
5. When Mr McCormick addressed the judge, he asked the judge to exclude or disregard this part of the evidence of Mr Oakes, both because of its late arrival and also because it was a downright fabrication. The judge rejected both those submissions.
6. What is now said on behalf of the claimant is that the decision to allow the evidence to be given produced a conclusion that was contrary to natural justice, contrary to the principles of the CPR and, indeed, constituted a breach of the provisions of Article 6(1) of the European Convention. It is therefore a very broadly based attack. Mr McCormick also in the skeleton argument attacks the judge's findings of fact, his failure to visit the site of the accident, six years after it had happened; and so on. But the heart of his application concerns Mr Oakes and the admission of his evidence.
7. The current provisions which now govern civil litigation are clear enough and well understood. The judge remains responsible now, as he did before, for seeing that a fair hearing takes place. In a situation like this, he had of course to bear in mind the fact that the evidence tendered on behalf of the claimant by Mr Oakes arrived late, contrary to the provisions of the Civil Procedure Rules and so on. But although the judge was critical of what happened (and rightly so), in the end he had to decide whether to allow Mr Oakes' evidence to be given in the context of his proper judicial control of the proceedings as a whole, taking into account the time at which the evidence was sought to be adduced and its overall effect on the likelihood of producing a just result, fairly achieved, with a balance kept between the interests of both sides.
8. In my judgment, despite the judge's correct criticism of what happened, there is simply no way in which this court should interfere with the exercise of his discretion. The conclusion that, making all allowance for the late arrival of this evidence (which provided the basis for much forensically powerful cross-examination), the evidence was in fact truthful, is equally unassailable in this court.
9. Finally, so far as this part of the application is concerned, reminding ourselves that the evidence of Mr Oakes was not by any means the only evidence on this topic, and given that there was a good deal of evidence, to which the judge was entitled to refer, in support of his conclusion that the claimant's speedy driving in all the circumstances was the sole cause of his injuries, it seems to me that the criticisms of the judge's conclusion are unjustified.
10. The result is that I see no basis on which either the judge's decision to allow Mr Oakes to give evidence during the trial about a topic which he had not covered in his earlier statement (which was within his overall control of the hearing), or the conclusion that he reached, having heard all the evidence, may be successfully appealed.
11. The last matter concerns the question of costs. As I have already indicated, the judge dismissed the claimant's claim with costs. That conclusion is attacked. The basis of the attack remains the late arrival of this evidence from Mr Oakes. The judge was perfectly well aware of it. He certainly, and expressly, took note of it. He came to the conclusion that, on the basis of the whole of the conduct of the case, the claim should be dismissed with costs. In my judgment there is no basis shown for interfering with his discretion in relation to that issue either.
12. Accordingly, the applications should be refused.
13. LADY JUSTICE HALE: I agree.
ORDER: Applications refused