![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321 (11 March 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/321.html Cite as: [2003] EWCA Civ 321, [2003] 3 WLR 841, [2004] Ch 1, [2003] CP Rep 46, [2003] BCC 682, [2003] 1 BCLC 696, [2004] 4 All ER 325 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Buy ICLR report: [2004] Ch 1]
[Buy ICLR report: [2003] 3 WLR 841]
[Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COMPANIES COURT
MR. JUSTICE PUMFREY
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE POTTER
and
LADY JUSTICE HALE
____________________
THE SECRETARY OF STATE FOR ![]() ![]() | Claimant | |
- and - | ||
![]() ![]() | Defendant |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. Charles Purle QC (instructed by Messrs Jones Day Gouldens) for the Defendant
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
The Vice-Chancellor :
1) that [The Secretary of State] and MrBairstow
be not entitled to challenge but be bound by the findings made by [Nelson J] in proceedings between Mr
Bairstow
(and others) and [QMH] by judgments dated 23rd July 1999 and 3rd December 1999…
.....
3) that MrBairstow
be permitted to file and serve further evidence dealing with mitigation."
On 20th February 2002 Pumfrey J granted Mr Bairstow
permission to appeal on the ground that the principle on which he had relied should be examined by the Court of Appeal.
"proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made."
"In my judgment, the over-riding question is, what approach is most likely to achieve justice? In my view, the interests of justice are unlikely to require a second investigation of facts which have already been the subject of exhaustive examination over many days in closely fought civil proceedings and in circumstances where the potential unfairness of the proceedings has already been examined by a court competent to do so and which has rejected the suggestion that there was any substantial unfairness in those proceedings. Of course, in making any pre-emptive decision there is always a risk of injustice, but the magnitude of that risk has to be assessed against the whole background of the case and, in particular, the nature of the previous proceedings. Here I do not consider that the question is in any way difficult to decide."
"I have come to the conclusion that once the facts have been established in the judgment of Nelson J it would require very compelling fresh considerations before a re-examination of those facts could be justified."
He determined that such a re-examination could not be justified and made the order under appeal.
"In truth, the conviction is only proof that another court considered that the defendant was guilty of careless driving. Even were it proved that it was the accident that led to the prosecution, the conviction proves no more than what has just been stated. The court which has to try the claim for damages knows nothing of the evidence that was before the criminal court. It cannot know what arguments were addressed to it, or what influenced the court in arriving at its decision. Moreover, the issue in the criminal proceedings is not identical with that raised in the claim for damages. Assume that evidence is called to prove that the defendant did collide with the plaintiff, that has only an evidential value on the issue whether the defendant, by driving carelessly, caused damage to the plaintiff. To link up or identify the careless driving with the accident, it would be necessary in most cases, probably in all, to call substantially the same evidence before the court trying the claim for personal injuries, and so proof of the conviction by itself would amount to no more than proof that the criminal court came to the conclusion that the defendant was guilty. It is admitted that the conviction is in no sense an estoppel, but only evidence to which the Court or a jury can attach such weight as they think proper, but it is obvious that once the defendant challenges the propriety of the conviction the court, on the subsequent trial, would have to retry the criminal case to find out what weight ought to be attached to the result. It frequently happens that a bystander has a complete and full view of an accident. It is beyond question that, while he may inform the court of everything he saw, he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide, but, in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant, but his opinion is not. The well recognised exception in the case of scientific or expert witnesses depends on considerations which, for present purposes, are immaterial. So, on the trial of the issue in the civil court, the opinion of the criminal court is equally irrelevant."
"...it is the irrelevance of the outcome of the earlier trial, as illustrated by cases such as R v Turner (1832) 1 Mood. 347, that makes evidence of that outcome inadmissible."
"An arbitration award, on the other hand, is an arbitrator's opinion, after hearing the evidence before him, of the rent at which the premises could reasonably have been let. The letting is hypothetical, not real. It is therefore no direct evidence of what was happening in the market. It is the arbitrator's opinion of what would have happened.
In principle the judgment, verdict or award of another tribunal is not admissible evidence to prove a fact in issue or a fact relevant to the issue in other proceedings between different parties. The leading authority for that proposition is Hollington v F. Hewthorn & Co. Ltd [1943] KB 587, in which a criminal conviction for careless driving was held inadmissible as evidence of negligence in a subsequent civil action. There has been criticism of this decision, and important exceptions have since been created by statute, notably in the Civil Evidence Act 1968, but none of them would apply here."
"(6) The procedure for the determination of costs is a summary procedure not necessarily subject to all the rules that would apply in an action. Thus, subject to any relevant statutory exceptions, judicial findings are inadmissible as evidence of the facts upon which they were based in proceedings between one of the parties to the original proceedings and a stranger: see Hollington v F. Hewthorn & Co. Ltd. [1943] KB 587; Cross on Evidence, 7th Ed. (1990), pp 100 – 101. Yet in the summary procedure for the determination of the liability of a solicitor to pay the costs of an action to which he was not a party, the judge's findings of fact may be admissible: see Brendon v Spiro [1938] 1 KB 176, 192, cited with approval by this court in Bahai v Rashidian [1985] 1 WLR 1337 1343D, 1345H. This departure from basic principles can only be justified if the connection of the non-party with the original proceedings was so close that he will not suffer any injustice by allowing this exception to the general rule."
"[31] The first point that has to be borne in mind is that neither the report itself nor any of its findings or conclusions will be admissible at any trial in this case. At this stage, when the only material that is available for consideration apart from the pleadings is the report and an incomplete bundle of relevant documents, it is tempting to fill in the gaps by reference to Bingham LJ's findings and the conclusions which he was able to draw from his review of the evidence. Nevertheless a sharp dividing line must be observed between, on the one hand, his narrative of the evidence and, on the other hand, his findings and conclusions in the light of that evidence.
[32] It can, as I have said, be assumed that if the claim is not struck out the claimants will in due course have access to the evidence, which provides the source material for that narrative, and that that evidence will be capable of being led by them at the trial. But, as Bingham LJ's findings and conclusions based on that narrative are inadmissible, they must be held to be incapable either of being led in evidence at the trial or being used by either side in any other way in support of the competing arguments."
Lord Hutton expressed the same opinion in paragraph 132. I do not understand either Lord Hobhouse of Woodborough or Lord Millett to have disagreed with these opinions.
"..that the principles adumbrated in Hollington v Hewthorn remain applicable in cases where none of the statutory or common law exceptions operate. Those principles prevent the findings made in earlier civil cases from being used subsequently as evidence of the facts found. They do not in themselves operate as a bar to the findings being put by way of cross-examination as to credit, subject to the control of the court, but that is a different topic with which it will be necessary to deal later in this judgment. But in so far as it was sought to adduce the findings of Ferris J. in order to establish that the Respondent had committed fraud and forgery in fact against Sheikh Ahmed and had therefore been involved in a fraudulent claim on the travellers cheques in this action the learned judge was correct to rule that those findings were inadmissible in law."
"It seems to me to be implicit in the decision of Evans-Lombe J. that findings of primary and secondary fact (as noted above, evaluative judgments are to be excluded for present purposes) are also admissible as evidence in these proceedings. But in any event, whether or not that may be strictly correct, I take the view that the implied statutory exception identified in Re Rex Williams Leisure plc, the wide-ranging nature of which was explained by Millett LJ in Ashcroft (at 81-82) – a passage quoted by Evans-Lombe J in his judgment in Re Barings plc (in admin) (No 2) [1998] 1 BCLC 590 (see 594-595) – covers findings of fact, as well as pure hearsay statements."
The validity or otherwise of this conclusion was not challenged by Mr Baker in his subsequent appeal: Re Barings (No.5) [2000] BCLC 523, 537 para 41.
"It would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. It cannot be denied that the only ground upon which Mr. Reichel can resist the claim by Mr. Magrath to occupy the village is that he (Mr. Reichel) is still vicar of Sparsholt. If by the hypothesis he is not vicar of Sparsholt and his appeal absolutely fails, it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same questions which the Court has decided in a separate action.
I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed."
Lords Fitzgerald and Macnaghten agreed. Lords Watson and Herschell gave concurrent speeches. This decision is inconsistent with the submission of counsel for Mr Bairstow
that the principle on which the Secretary of State relies cannot apply because Mr
Bairstow
has not initiated any attack on the earlier judgments of Nelson J.
"As I understand the law with regard to res judicata, it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in a litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up to the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. My lords, the only way in which that could possibly be admitted would be if the litigant were prepared to say, I will shew you that this is a fact which entirely changes the aspect of the case and I will shew you further that it was not, and could not by reasonable diligence have been, ascertained by me before."
In Hunter v Chief Constable of West Midlands there was no evidence which satisfied that test, with the consequence that it was an abuse of the process of the court to seek to relitigate the issues which had been determined by Bridge J and the jury in the earlier criminal proceedings. In those circumstances the claim had been properly struck out.
"in cases in which relitigation of an issue previously decided would be "manifestly unfair" to a party or would bring the administration of justice into disrepute."
He specifically approved the observation of Ralph Gibson LJ in Walpole v Partridge & Wilson that the initiation of such proceedings is not necessarily an abuse of the process, but that it may be. Lord Hope of Craighead (p.722) accepted that all cases which can be treated as amounting to a collateral challenge to a subsisting conviction will be dismissed or struck out as an abuse of the process. Lord Hutton (p.727) and Lord Millett (p.752) agreed with Lord Hoffmann. Lord Hobhouse of Woodborough noted (p.742) that challenging a previous decision does not necessarily connote an abuse of the process. Later (p.743) he added:
The "collateral attack" point is a species (or "sub-set") of abuse of process. There is no general rule preventing a party inviting a court to arrive at a decision inconsistent with that arrived at in another case. The law of estoppel per rem judicatem (and issue estoppel) define when a party is entitled to do this. Generally there must be an identification of the parties in the instant case with those in the previous case and there are exceptions. So far as questions of law are concerned, absent a decision specifically binding upon the relevant litigant, the doctrine of precedent governs when an earlier legal decision may be challenged in a later case.
A party is not in general bound by a previous decision unless he has been a party or privy to it or has been expressly or implicitly covered by some order for the marshalling of litigation (Ashmore v British Coal Corpn [1990] 2 QB 338). This overlaps with the concept of vexation where the same person is faced with successive actions making the same allegations which have already been fully investigated in a previous case in which the later claimant had an opportunity to take part."
a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court.
b) If the earlier decision is that of a court exercising a criminal jurisdiction then, because of the terms of ss. 11 to 13 Civil Evidence Act 1968, the conviction will be conclusive in the case of later defamation proceedings but will constitute prima facie evidence only in the case of other civil proceedings. (It is not necessary for us to express any view as to whether the evidence to displace such presumption must satisfy the test formulated by Earl Cairns in Phosphate Sewage Co.Ltd v Molleson, cf the cases referred to in paragraphs 32, 33 and 35 above.)
c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings.
d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute.
Potter LJ
Hale LJ