Case no: B3/2012/3330 
Neutral Citation Number: [2013] EWCA Civ 896
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM SOUTHAMPTON COUNTY COURT
(MR RECORDER MURPHY)
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Friday, 28 June 2013
 
B e f o r e: 

LORD JUSTICE TOMLINSON
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Between: 

FAUNCH 
Claimant/Respondent 

- and - 

O'DONOGHUE & ANOTHER
Defendants/Applicants 
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 (DAR Transcript of 
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Mr Mark Laprell (instructed by DWF LLP Solicitors) appeared on behalf of the First Defendant/Applicant. 
The Second Defendant did not appear and was not represented.
The Respondent did not appear and was not represented.  
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J U D G M E N T 
LORD JUSTICE TOMLINSON:  
1.	This is a renewed application for permission to appeal against a judgment given by Mr Recorder Murphy in the Southampton County Court sitting at Winchester on 29 November 2012, following a trial which took place on 1 and 2 November of that year.  The trial related to liability only in a personal injury action arising out of a road traffic accident which occurred on the M27 motorway on 20 December 2009 at night.

2.	The claimant, Janet Faunch, was a front seat, seat-belted passenger in a Vauxhall Corsa driven by the first defendant, Mr O'Donoghue, with whom she was at the time in a relationship, when it came in collision with a car driven by the second defendant, Mr Brice, which was a Ford Focus.  The view was taken in advance of the trial that the claimant, Janet Faunch, was bound to recover 100 per cent of her damages against either the first defendant or the second defendant, or conceivably both, and it was therefore agreed informally without there being any Part 20 proceedings that the trial should continue between the two defendants alone so as to determine who was responsible for the collision or in what proportions the responsibility should be allocated.

3.	Mr Laprell, who appeared for the first defendant at trial and who has appeared before me today, has pointed out to me at the outset that a particular and perhaps slightly concerning feature of this litigation is that, to put it no higher, there is a real possibility that those who were representing what I might call the personal interests of the first defendant Mr O'Donoghue may not fully have appreciated that a trial structured in the way in which this was would give rise to a conclusion which would be likely to be binding as between Mr O'Donoghue and Mr Brice when it came to the determination of Mr O'Donoghue's claim against Mr Brice.  

4.	Mr Laprell reminds me that that is of some significance here because Mr O'Donoghue was very seriously injured in the course of this accident, so seriously injured in fact that he was unable to take part in the trial, and if my recollection is right, the position was that he in any event had no independent recollection of what had occurred.

5.	The trial therefore was conducted by insurers exercising their subrogated rights, and whilst of course there was consultation between the insurers' representatives and the representatives of the first defendant, there is that lingering concern to which Mr Laprell has very properly drawn my attention, and there is therefore the overriding consideration that whereas it might seem at first blush that this is simply a contest between two insurers as to who must bear the responsibility for Janet Faunch's claim, the reality is that unless Mr Laprell and I are overlooking something, the outcome of the trial is completely fatal to any attempt by Mr O'Donoghue to recover damages from Mr Brice in respect of his very serious injuries.

6.	The thrust of the argument put forward today by Mr Laprell, repeating what he has said in his grounds of appeal and skeleton argument and his statement put forward pursuant to paragraph 16 of the Practice Direction, is that the trial process was here flawed in consequence of the manner in which the learned Recorder came to his conclusion.  

7.	The Recorder was faced with the situation, not an unusual situation, in which diametrically opposed cases were being advanced on behalf of two defendants.

8.	The case of the first defendant, Mr O'Donoghue, was that he was proceeding in the central lane of the M27, which is a three lane carriageway at this point.  He was proceeding in the central lane and Mr Brice in his Ford Focus, who was proceeding at a slower speed in the nearside lane, attempted to move into the middle lane in front of Mr O'Donoghue, in consequence of which the front nearside of Mr O'Donoghue's Vauxhall Corsa made an impact in a left to right manner with the rear offside of the Ford Focus, in consequence of which both drivers thereafter lost control.

9.	The case put forward by Mr Brice, on the other hand, was that he was proceeding in the middle lane and that it was Mr O'Donoghue in the outside lane who attempted to move into the middle lane, apparently oblivious of his presence.  The principal competing evidence of fact came from Janet Faunch herself and an independent witness, a Mr Lister, who was driving some 60 to 80 metres behind the Ford Focus and the Vauxhall Corsa at the time when the accident occurred.  I reiterate that it was in the dark, although apparently the road, although not technically lit by road lighting, receives the benefit of some illumination from a nearby Ford Motor Plant.

10.	It was the evidence of Mr Lister that he had observed the Corsa in the outside lane at a point at which it was effectively alongside the Ford Focus attempting to pull into the middle lane, then realise at the last moment that that was an impossible manoeuvre bearing in mind the proximity of the Ford Focus, following which the Vauxhall Corsa steered sharply to the right, as a result of which control of the car was lost by the driver, which then came into contact with the front of the Ford Focus, both drivers then losing control, in consequence of which of course both were severely damaged.

11.	The judge also had the benefit of expert evidence from a Mr Natt and a Mr Lambourn who were effectively consultants in accident reconstruction, if I can put it broadly in that way, and collision investigation and matters of that sort.

12.	The trial proceeded upon the basis that the accident had occurred, broadly speaking, in one or other of the manners which I have just described.  I should have said incidentally that Mr Brice, the second defendant, himself gave evidence.

13.	The judge, when he came to consider his judgment, ultimately reached the conclusion that he needed to choose between effectively the evidence of Janet Faunch, which was supportive of the first defendant's case, and the evidence of Mr Lister.  There was of course a very considerable difference between their evidence, bearing in mind that Janet Faunch was quite clear or at any rate tolerably clear in her recollection that the Ford Focus had attempted to move from the nearside lane to the middle lane, and was adamant, as I understand it, that there was no question that the Corsa driven by her then partner, if I can call him that, had inadvertently attempted to move from the outside lane into the middle lane unaware of the presence of a vehicle virtually alongside, which vehicle, as Mr Laprell rightly points out, would have been right alongside her as the front seat passenger.

14.	The judge came to a conclusion which had not been canvassed at any point during the trial with either the lay or the expert witnesses.  Broadly, he came to the conclusion that the first defendant's expert, Mr Natt, was right about the orientation in which the impact occurred, in that it was a left to right impact which was of some significance, and that he was right about the location of the damage on the vehicles and the significance of that. Nonetheless, the judge concluded that what had occurred was that rather than the Corsa attempting to move into the middle lane, realising the problem and steering back to the right before any collision had occurred, what must have occurred was that the Corsa, travelling at a higher speed than the Focus, had attempted to pull in to the middle lane at a point at which it must have been physically behind the Focus but unaware of its presence, had then realised that that vehicle travelling more slowly was immediately in its path, and in steering sharply to the right in an attempt to avoid any collision, had at that point made the left to right impact which I have described.  Consistently with that, the judge felt that he was able to prefer the evidence of Mr Lister to that of Janet Faunch, and to conclude that the Focus was established in the middle lane, the Corsa having determined to move from the outside lane to the middle lane, failing to appreciate the presence of the Focus in the middle lane.

15.	The difficulty with that conclusion was, as Mr Laprell has pointed out to me, that if that was accepted, it demonstrated that Mr Lister's evidence, which was already accepted to be inaccurate in many respects, including his recollection that the Corsa had made contact with the front of the Focus, and his recollection as to the position in which at any rate the Focus ended up in consequence of the accident, his evidence was still further inaccurate in that whereas he had suggested that the Corsa was alongside the Focus when it tried to move in, on the judge's hypothesis it could not have been alongside when it tried to move in, but it must have been behind the Focus, not least because it was travelling at a faster speed than the Focus, and as a subsequent expert's report of Mr Natt has demonstrated, taking into account the time taken for a vehicle to execute a lane changing manoeuvre of that sort, it would in fact have required to be at least 15 metres behind the Focus in order for this theory to work.

16.	Mr Laprell says that the trial process has effectively been unfair, or at any rate has miscarried in the sense that the judge has denied to the parties the opportunity to give their evidence on and to address their arguments to the conclusion which he was minded to reach.  He points to the fact that had this scenario, if I may use that word, been canvassed by the judge, then Mr Natt would have been able to explain, as he has done in his supplementary expert's report, that there were yet further consequences to be taken into account if the accident was to be regarded as having occurred in this way, which would tend to suggest that Mr Lister's evidence was unreliable in a yet further respect, which in turn would have caused the judge, or might have caused the judge, to pause to consider whether it was really appropriate at the end of the day to prefer the evidence of Mr Lister to that of Janet Faunch.

17.	Mr Laprell also points out that on this basis not only was there a considerable distance between the two vehicles as opposed to Mr Lister's recollection that they were alongside, but on this hypothesis the judge had the Corsa moving right into the middle lane before executing the manoeuvre to move out again, rather than simply beginning to drift into the middle lane then moving out when realising the danger that lay ahead.

18.	This court is of course always most reluctant to interfere with the findings of fact made by a judge at the conclusion of a trial of this sort.  But there is, in my judgment, some force in the manner in which Mr Laprell has put his arguments today, and in particular there is some force in the suggestion that the trial process ought not ordinarily to reach a conclusion which is a conclusion which has never been canvassed during the trial, and on the implications of which neither the lay witnesses nor the expert witnesses have had an opportunity to comment, nor indeed the parties to marshal their arguments.  Bearing in mind the potential consequences of the outcome of this trial and the seriousness of them for the first defendant Mr O'Donoghue in terms of his ability to effect a recovery from the second defendant, I am satisfied that in all the circumstances it is appropriate that I should grant permission to appeal, and accordingly I do so.

19.	In revisiting this judgment, I wish to make clear that it will of course be a matter for the full court whether the fresh evidence, in the shape of Mr Natt’s supplementary report produced in light of the judgment, should be admitted.

Order: Application granted