Manning v King's College Hospital NHS Trust [2009] EWHC 75 (Admin)

[2009] EWHC 75 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/01/2009
Before
THE HONOURABLE MR JUSTICE STADLEN
Between
GARY RICHARD WILLIAM MANNING (Executor of the Estate of Jane Louise Manning Deceased)ClaimantKING’S COLLEGE HOSPITAL NHS TRUSTDefendant
MR GRACE QC (instructed by Leigh Day and Company) for CLAIMANTMS MISHCON (instructed by Barlow, Lloyd and Gilbert) for DEFENDANTHearing Hearing date: 5 December 2008
Judgment
[1]This is a limited application for permission to appeal. On 5 December 2008 I handed down my judgment assessing the damages to which I had held in my judgment on liability, handed down on 29 September 2008, the claimant was entitled.[2]On 29 September 2008, after I had handed down judgment on liability, I gave the defendant permission to appeal against my decision and judgment on liability. I did so on an application which was confined to seeking permission to appeal against my judgment, decision and finding on liability. No permission was sought and none was granted at that hearing to appeal against my decision on damages or any part thereof. Given that I had not, by then, yet handed down my judgment on damages, this might be thought to be unsurprising. I mention it only because an issue arose in the context of the current application for permission to appeal against part of my decision on damages as to whether such permission was necessary.[3]In total I held that the claimant was entitled to £475,191.00, apportioned as to £112,908.00 in respect of the claim under the Law Reform (Miscellaneous) Provisions Act 1934 and £362,283.00 in respect of the Fatal Accidents Act 1976 claim. Each of those awards was made up of a series of specific awards under a series of detailed heads of claim. The defendant does not seek permission to appeal against any part of my Order or judgment for damages under the Law Reform (Miscellaneous Provisions) Act 1934, nor in respect of the whole of the decision and Order under the Fatal Accidents Act 1976. Limited permission to appeal is sought in respect of two discrete parts of my judgment under the Fatal Accidents Act:(1) the award of damages for loss of services which would have been provided by Mrs Manning after 1 October 2007; and(2) the award of damages for the loss of dependency by her children, Henry and Lucy, by reason of the loss of earnings which she would have had during part of the period between 1 October 2007 and the time when Lucy would have left University.[4]Both the appeals for which permission is sought raise a similar ground of appeal. It is submitted by the defendant that I was wrong, in making findings of fact in respect of the period between the end of the trial and the date of the damages judgment, to confine myself to evidence which had been adduced during the trial. In the case of the loss of services claim, it is submitted that I should have enquired into, or adduced evidence (sic), in relation to what actually happened during that period. In relation to the loss of dependency claim, it is submitted that I should have taken account of the fact that during that period the economy went into recession and thus Mrs Manning would have been less likely to obtain employment.[5]For the reasons which follow, both grounds of appeal are, in my judgment, hopelessly misconceived and any appeal would have no realistic prospect of success. Accordingly, I refuse permission to appeal against both of the parts of my judgment which I have identified.[6]In order to understand this application and my reasons for rejecting it, it is necessary to appreciate the salient dates in the litigation chronology.

Factual Chronology

[7]Mrs Manning died on 13 May 2002. The claimant’s schedule of loss and the defendant’s counter schedule of loss calculated past losses up to and including 1 October 2007, the anticipated eve of the trial. In fact, due to a last minute change of judge, there was a short delay before the trial commenced, and the trial began a few days later. The trial estimate was between 7 and 10 days. This was subsequently accepted by Counsel for both sides to be a gross underestimate. In fact, the trial continued until early December 2007. Most of the trial was taken up with very complex conflicting expert medical evidence spread across a number of disciplines.[8]On 18 January 2008, Mr Manning died of cancer. On 31 July 2008 I announced my principal decision on liability, having handed down the draft judgment on liability a couple of days earlier. Although there was insufficient time for the parties to provide the court and thus for the court to incorporate typographical errors in the draft judgment which ran to 647 paragraphs, I considered it important to announce my decision on liability before the long vacation rather than deferring it until I could hand down judgment on damages.[9]On 29 September 2008 I formally handed down my judgment on liability. On that day there was a hearing at which I entertained an application for permission to appeal against my decision on liability and dealt with a number of ancillary matters. The week before that Mr Grace QC, on behalf of the claimant, enquired of the court whether it was likely that there would be judgment on quantum available for the hearing on 29 September, to which the response from my then clerk was that there would not be a judgment on quantum on that day. At the hearing on 29 September 2008, in response to a question when the quantum judgment would be handed down, I said that it would be as soon as possible.[10]On 14 November 2008 there was a further hearing. The main purpose of the hearing, which was arranged at my direction, was to give the parties an opportunity to indicate whether they wished to make submissions on the question whether interest should run on damages until the date of the liability judgment or the date of the damages judgment, and if so to fix a timetable for such submissions. In view of the likely time lag between the former and the latter, which had not been anticipated when the parties made their submissions at the end of the trial, it seemed to me right that they should have such an opportunity. To focus the parties’ attention on this point, my clerk had attached, in an email to the solicitors on both sides , an extract from my draft judgment dealing with this matter. In addition there were outstanding issues on the terms of the draft orders arising out of the hearings on 31 July 2008 and 29 September 2008, and a particular point on the costs of closing written submissions. In the words of Mr Grace QC at the hearing on 5 December 2008, there was an omnibus invitation to deal with anything outstanding at that hearing of 14 November2008.[11]In an email dated 24 October 2008 to the parties, my former clerk had indicated that it was my intention to hand down judgment in the week beginning 10 November 2008, indicating that there were likely to be interest calculations which the parties would be asked to make based on my findings. In an email dated 13 November 2008, my clerk identified the point on the end date to which interest should run and said that it might or might not be that one or both of the parties might wish to make submissions on that issue and that the purpose of the hearing on 14 November was not to entertain such submissions but rather to discuss briefly the timetable implications flowing from the possible need to determine that issue in relation to interest.[12]At the 14 November 2008 hearing there was agreement between the parties that the appropriate end date for interest should be the date on which the judgment on the assessment of damages was delivered. Mr Grace QC, for the claimant, then raised a separate but related point. It concerned the question whether losses incurred in respect of the period between the commencement of the trial and the date on which the damages judgment was to be handed down, should properly be dealt with as past or future losses. Both parties in their submissions at trial had made submissions on the basis that they would be dealt with as future losses. Mr Grace QC told me, and Ms Mishcon confirmed, that in personal injuries cases that is the conventional way in which losses, in respect of the period between commencement of trial and the judgment are dealt with, both in submissions and in judgment. However, Mr Grace QC submitted that, as a matter of theoretical analysis, that categorisation is incorrect and such loss should properly be dealt with as past loss. Accordingly, he invited me to adopt that approach in my judgment on the basis that the unusually long time between the commencement of the trial and the anticipated handing down of judgment on damages, meant that it was appropriate, in this case, to adopt the analytically correct approach.[13]This prompted an extended discussion. Ms Mishcon’s initial invitation to me was to hand down my damages judgment in draft with enough time for the parties to try to get to grips with the implications of this point to agree things, if they could, and if not, to notify me in plenty of time so that the matter could be dealt with before the formal handing down of the judgment. I indicated that I would need to consider my draft judgement in the light of this point and indicated that, if my draft judgment, when circulated in the light of this point, gave rise to more than an issue of converting findings into hard figures there would have to be an interim hearing in which the parties could argue any points of controversy. Both counsel suggested that, in the first instance, submissions could be made in writing with an oral hearing in the event that any points of difference could not be resolved on paper.[14]There was then further discussion on whether I should adopt a past or future loss approach, following which I asked Ms Mishcon for clarification to indicate whether she agreed that I should adopt a past loss approach. Initially, having taken instructions, Ms Mishcon said that the defendant would agree but asked if she could reserve the right to make any argument at any stage, either on the question of costs or on any point of appeal. I said that it could not be right that if the defendant agreed that the cut-off point between past and future loss should be the date of quantum judgment, that it could reserve the right to argue in support of, or at an appeal, that the consequences of that should be other than what they are. If Ms Mishcon was concerned about the consequences, then she should not agree and I would then have to decide the point – she could not have her cake and eat it. On further reflection, Ms Mishcon then confirmed that the defendant would agree that, for the purposes of this case, the cut-off date should be that on which the quantum judgment was delivered.[15]I then raised a related point. The parties in their closing submissions had made submissions as to the extra time that Mrs Manning would have devoted to Mr Manning looking after him during his illness in the months following October 2007. Since Mr Manning was still alive at the time those submissions were made, they were necessarily made on an assumption as to when he would die as a result of the cancer. I said:
“There is a question as to whether the court takes the realistic course of applying this to the date when we all know he actually died, even though that was not known at the time the argument finished.”
Both Mr Grace QC and Ms Mishcon agreed that I should do so, Mr Grace QC stating:
“the Court does not act in vain. If the court knows that he died on a certain date then it would be absurd to pretend that he died on a different date”
. I was then reminded that Mr Manning had died on 18 January 2008 ,a fact of which I was already aware, the parties having notified my clerk immediately following his death.[16]There followed submissions on a costs question which is not relevant for present purposes. I then referred to the fact that one of the issues at the trial was where Mr Manning’s children would live after his death and, in particular, whether they would remain where they were and have a housekeeper(the claimant’s case) or would go and live with his brother or sister(the defendant’s case). Submissions had been made on that issue, which I indicated I had well on board. I said that I could not help reflecting, as I was drafting, that there was an air of unreality about the fact that I would be making a finding as to what, on the balance of probabilities, would happen when actually, unknown to me, that finding would be either right or wrong in the light of the events that had meanwhile transpired.[17]At this point Mr Grace QC, who was on his feet, appeared to be about to say something. In order to avoid the possibility of him referring to any facts of which I was not aware, prior to both parties having had an opportunity to make any submissions as to whether that would be appropriate, I then said:
“I am not inviting at the moment, do not say anything”
.

There was then the following exchange:

“MR GRACE QC: “No” what I was about to say was I do not know and the evidence is complete in the case. MR. JUSTICE STADLEN: It is complete Yes. MR GRACE QC: Therefore I do not have any need to find out. MR. JUSTICE STADLEN: In that case we will just proceed on the basis that I will make by findings based on the evidence and my view as to the probabilities based on that evidence. MR GRACE QC: Yes. MS. MISHCON: My Lord, just to throw a spanner in the works, there is a case which your Lordship may wish to look at which is a case arising out of solicitor's negligence. It is a case called Charles and Hugh James and I cannot remember the third name of the solicitors' firm. I can find that out for you. I apologise I cannot remember but I can e-mail it through to your Lordship. That is a case where when they are looking at a personal injury claim that has somehow gone wrong because it was not served in time or something went wrong procedurally, and then you are looking at what has happened since, you look at the notional trial date and what is happening at the time of the judge giving the solicitor's negligence claim for not having brought the personal injury claim in time. What has happened since is taken into account because in certain situations there may have been deterioration in the Claimant's health that was not foreseen at the time of the notional trial date. There are various aspects. It may just be a case that your Lordship wishes to look at on the basis that if it can be known what has happened in between it is perhaps something that should have been asked. I am trying to assist your Lordship in having a look at that point in considering whether it would in fact be an appropriate case that one would have to consider in these very unusual circumstances, because again this is a case where I do not think there is any precedent. All I am saying is that if the case had been settled when it should have been settled in these personal injury cases, the claim could have been much more or much less, but the court has to look at what it actually knows now that it is dealing with it some three or four years later down the line. It was held by the Court of Appeal that it should actually, that what you find out after the date when it would have been heard should be taken into account. MR. JUSTICE STADLEN: I am not sure that is an exact analogy with this situation though, is it? In that case it is saying, from your description of it, that if you are quantifying the loss you look beyond the date on which the original claim was made to the point at which the new claim from the solicitor's negligence is being heard, and between those two periods of time you can look at what actually happened. This is different. This is looking at what has happened between the date of the close of the trial and the writing of the judgment. MS. MISHCON: My Lord, that is what I was leading to when I said it was difficult to agree in circumstances where if in fact you were taking the date of quantification as at the date of trial, then that might be the way that your Lordship has to look at it, but if your Lordship is taking quantification as at the date of quantum judgment, then it is very difficult to make a decision on what has happened in between on the basis of an argument that was put forward a year ago and may or may not have happened. That is all I am flagging up, my Lord, and I feel that it may be right to do so, because we are changing the normal course of events. MR. JUSTICE STADLEN: Yes, but you have agreed that past losses should continue until the date of quantum judgment. It does not follow from that that I can do it on the basis of anything other than the evidence which I have heard on the basis on which I have to make a finding. Either way, if we took the date as 1st October, I would have to make a finding as to what would probably have happened this last year. As it is, on the basis of the agreement between the parties, I am going to have to make a finding on the balance of probabilities as to what has happened based on that evidence. MS. MISHCON: My Lord, I am not sure whether that would be the correct approach given the case that I have referred to, but your Lordship I am sure can look at that case and see whether you think that it is appropriate in this case. MR. JUSTICE STADLEN: Are you making a submission? MS. MISHCON: My Lord, it is very difficult to know because I do not know what your Lordship is going to do. MR. JUSTICE STADLEN: It is not a question of what I am going to do. It is a question of whether you are making a submission. As things stand I am constrained by the evidence that was given, because I have no other evidence. MS. MISHCON: My Lord, I think that may well be the case, but that is because at the moment there has not been any question as to what has happened in between. My Lord, I do not know what the answer is. That is the difficulty in this case, because we have no precedent to go by. This is so unusual that we are agreeing, if you like, a different date for quantification that is over a year or a year ahead of the date that we were all looking at, when obviously your Lordship had to deal with it on the balance of probabilities. I was trying to assist your Lordship because I did not want at any later stage there to be any argument that had not been raised at this time. My Lord, I have no idea in truth, because I have not thought about it or looked at it enough, I know this case and I know this case from solicitor's negligence cases and I know how applicable it is in this case, I have not properly addressed my mind as to whether or not it is applicable in this case.All I am doing is asking your Lordship perhaps to have a look at the case and see whether or not your Lordship feels that it is a case that has to be taken into account. I cannot make any greater submission than that, my Lord, because there is no precedent to go by. I just felt I should alert your Lordship to that case.. MR. JUSTICE STADLEN: What is the authority? MS. MISHCON: It is Charles and Hugh James and something or other. MR. JUSTICE STADLEN: Could you e-mail my Clerk with the reference? MS. MISHCON: Absolutely. It has been followed since, my Lord. MR. GRACE: I think it is really not relevant to this situation. Obviously in a solicitor's negligence case the court does not act in vain if there is evidence before it as to what has happened since the date when the original trial would have come on. It would be futile for the court to pretend that things were other than what the court already knew. We have already discussed the question of Mr. Manning's death and obviously the court knows of that and knows of the date, but there is no evidence other than what your Lordship has heard. Therefore, that is the basis on which your Lordship has to proceed. MR. JUSTICE STADLEN: Is there anything else? MR. GRACE: I think not. MR. JUSTICE STADLEN: I think it then looks as though we do not need a further hearing.The only circumstance in which we would need another hearing would be if having got my draft judgment (A) the parties do want to make written submissions on the effect of the agreement that the cutoff point is the date of quantum judgment, and (B) if having read those submissions I feel that there is a need for it in which case I will shout. It seems to me, therefore, there is no point in fixing a date for a hearing because we may not need one. MR. GRACE: Not for those purposes, no. MR. JUSTICE STADLEN: For any purposes. No, we will need a hearing. We are going to need a hearing for costs. (emphasis added). There then followed an exchange on the future timetable for circulating the draft judgment, handing down of the judgment and the possibility of a further hearing between those two events, which included the following: MR. JUSTICE STADLEN: The handing down of the judgment does not require more than 30 seconds or five minutes, maybe half an hour. The only thing that could take time is if there is an intermediate hearing before judgment is formally handed down on this question of the cut off date.”
I then fixed 5 December 2008 as the date for handing down judgment, and dealing with arguments on costs and any other consequential matters, on the basis that “That gives the maximum flexibility in terms of lead-up time for people to think about issues arising out of the draft quantum judgment” which I indicated would be circulated in draft in advance of that hearing. There was then the following exchange:
“MS. MISHCON: My Lord, is it the draft judgment coming down in about three weeks or are you talking about the draft judgment coming down before then? MR. JUSTICE STADLEN: No, before then. I am talking about the hearing in three weeks, prior to which you will have had the draft.(emphasis added).”
MR. JUSTICE STADLEN: Are you making a submission? MR. JUSTICE STADLEN: What is the authority? MR. JUSTICE STADLEN: Could you e-mail my Clerk with the reference? MR. JUSTICE STADLEN: Is there anything else? There was then the following exchange:[18]After court on 14 November 2008, Ms Mishcon emailed my clerk attaching a copy of the judgment in Charles v Hugh James, Jones and Jenkins 2000] W.L.R. 1278and giving the reference to the report in the case of Dudarec v Andrews [2006] EWCA Civ 256 which followed the earlier decision.[19]On 1 December 2008, my clerk notified the parties that the quantum judgment would be circulated in draft the following morning. The draft quantum judgment was duly circulated to the parties on 2 December 2008. By the time of the hearing on 5 December 2008 both parties had sent my clerk a list of typographical corrections together with written submissions on costs. The Defendant had not lodged any written submissions arising out of the discussion at the 14 November 2008 hearing on the evidential basis on which I should make findings on the housekeeper issue or given notice of any desire to make such submissions or any application at the hearing on 5 December 2008 before I handed down the quantum judgment.[20]On 5 December 2008 the whole day had been set aside for this case. Mr Grace QC set out an agenda for the day. He handed up a detailed spreadsheet setting out the sum in respect of each head of claim which the parties agreed represented the amount of damages to which the claimant was entitled as a result of the findings in my draft judgment. He then indicated that I would have to apportion the overall sum of damages which I awarded as between the claims under the two Acts and as between Henry and Lucy, the two surviving beneficiaries. Ms Mishcon then said she had only one concern before I formally handed down an approved judgment which was whether I had had an opportunity to see and incorporate the typographical changes which she had sent through to my clerk.[21]The next item on the agenda was to be costs. I then asked Ms Mishcon whether there was anything else on the agenda so far as the defendant was concerned, to which her answer was that there would be an application for permission to appeal “if it is necessary, because I have already got permission to appeal as far as liability is concerned (of course the two matters were heard together). There will be an application for permission to appeal on quantum and also a stay.” Again there was no application that I should defer handing down the quantum judgment to enable submissions to be made as to the adducing of further evidence on the housekeeper issue.[22]Thereupon I delivered my judgment and formally handed it down.

The first ground of appeal

[23]The first part of my judgment against which permission to appeal is sought is my award of damages for loss of services of Mrs Manning as a mother from the date of Mr Manning’s death on 18 January 2008 until July 2014 when Lucy leaves university. In the light of the agreement reached between the parties at the hearing on 14th November 2008 the award in respect of this period was broken down as to past loses up to the date of the delivery of the quantum judgment on 5 December 2008 and future losses thereafter.[24]In respect of both periods the ground of appeal was the same. The way in which Ms Mishcon formulated this ground of appeal was revealing. Initially she said that I should have adduced evidence as to what was actually happening before I gave judgement on quantum. When I questioned that, she re-formulated the ground as being that I should have enquired as to what was happening. This was, in my view, revealing because it underlined what I considered to be the basic fallacy which in my view underlies this ground of appeal. It is in my judgment not the function of a court in giving judgment to make enquires but rather to make findings of fact based on the evidence adduced at trial.[25]In my judgment a number of important facts emerge from the chronology set out above;(1) At no stage between the end of the trial in December 2007 and the delivering of the quantum judgment on 5 December 2008 did the defendant make any application either (a) for permission to adduce further evidence as to whether or not a house keeper was employed after Mr Manning’s death in January 2008 (b) that I should not deliver quantum judgment until there had been further evidence on this issue (c) for an application that the trial should be re-opened for the purpose of receiving further evidence (d) for directions as to the timing and content of such evidence or even (e) that I should of my own initiative make factual enquiries as to the position before delivering quantum judgment.(2) At all material times from at least 29 July 2008 when the draft liability judgment was circulated to the parties there was nothing to stop the defendant making any such application.(3) Specifically there were no fewer than three hearings on 31 July 2008, 29 September 2008 and 14 November 2008 at which such an application could have been made. By the time of each of those hearings it was by definition known to the defendant and certainly should have been known (a) that a house keeper either had or had not been employed in the period following Mr Manning’s death on 18 January 2008 (b) that there was no evidence before the court on that issue (c) that the quantum judgment had not yet been circulated in draft (d) that in the absence of an application by the defendant there was a risk to put it at its lowest but more realistically a likelihood that the quantum judgment would be confined to findings based on the evidence adduced at trial and (e) that if the defendant wished the court to proceed on the basis of further evidence as to what actually occurred following Mr Manning’s death there was nothing to stop it making any of the applications set out under (1) above.(4) Even at the hearing on 14 November 2008 when I specifically raised this question, Ms Mishcon explicitly confirmed in answer to my question that she was not making any submission whether that I should take any of the courses set out in (1) above or otherwise and she made no such application. That is so notwithstanding that, as appears from the exchange set out above, I made it clear that I would make my findings based on the evidence adduced at trial and my view as to the probabilities based on that evidence. Indeed having referred to Charles v Hugh James Jones and Jenkins Ms Mishcon said she did not know what the answer was because she had not thought about it or looked at it enough. Beyond inviting me perhaps to have a look at that authority and see whether I felt it had to be taken into account she said she could not make any greater submission than that because there was no precedent to go by.(5) Even after the 14 November 2008 hearing the defendant had every opportunity, having considered the position further, to make any such application as is set out in (1) above but failed to do so. That is so notwithstanding that at the end of that hearing I indicated that the parties would have an opportunity to make written submissions even after receiving my draft judgment and if necessary oral submissions at a further oral hearing.(6) As appears above, in agreeing that the losses between 1 October 2007 and the date of the quantum judgment (which includes the period in respect of which she now argues I should have established what actually happened) should be treated as past rather than future losses Ms Mishcon explicitly accepted that it was not open to her to reserve her position on any appeal.(7) Knowing as they did following the hearing on 14 November 2008 that it was my intention to make findings of fact on the house keeper issue based on the evidence adduced at trial and to express my view as to the probabilities based on that evidence, there was nothing to stop the defendant and its lawyers from making an application under (1) above and it is to be inferred that they knew that absent such an application I would proceed as indicated.[26]There was an unfortunate lack of clarity in Ms Mishcon’s submissions at the hearing on 5 December 2008 as to her state of mind on this issue. At one point she suggested that she had anticipated that I would have been enquiring as to what happened in relation to a house keeper after Mr Manning’s death of my own accord before giving quantum judgment. I am bound to say I found this puzzling given that so far as the defendant was concerned there was no indication at any time prior to 14th November 2008 that I intended to make any such enquires of the parties before delivering my quantum judgment. It is also at odds with her frank admission at the hearing on 14 November 2008 that she had not properly addressed her mind as to whether the Charles v Hugh James Jones and Jenkins authority was applicable in this case.[27]Later in her application on 5th December 2008 she said that this point had occurred to her but she accepted that she had not made an application for an enquiry to be made before the hearing on 14th November 2008. That was in the context that, as I pointed out, I had indicated in answer to Mr Grace QC at the hearing on 29th September 2008 that I would be delivering my quantum judgment as soon as possible. In fact, as she acknowledged, the issue whether I should proceed on the basis of an assumption when I knew that there must be a reality was not dependent on whether the losses between the date of Mr Manning’s death and the delivery of judgment were treated as past or future losses. The issue was thus live at all material times even before 14 November 2008[28]Still later on 5 December 2008 I put it to Ms Mishcon that it had been open to her to make by way of submission at any point up to 14 November 2008 the point on which she now relied as a ground of appeal, namely that I should not have delivered my quantum judgment without making an enquiry into the house keeper point by asking the claimant and if the claimant declined to answer then making some kind of direction giving an opportunity for the adducing of evidence. Her response was;[29]At all events whatever the state of mind of the defendant and its lawyers was, it is inescapable in my judgment that if it was their view that I should not deliver quantum judgment on the basis of the evidence adduced at trial there was every opportunity for them to make an appropriate application to seek to ensure I did not do so. They have no-one to blame but themselves for the fact that they did not do so. Even before the hearing on 14 November 2008 the point was, as Mr Grace QC put it “obviously there in red lights”. After I raised the point at the hearing on 14 November 2008 it was out in the open and on the table and still the defendant failed to make any application or submission either at the hearing or thereafter.[30]In these circumstances in my judgment this application for permission to appeal is completely hopeless. The defendant is seeking permission to appeal on the basis that I erred in failing to take a course which it never urged me to take. Since it is not the function of the court and the court has no powers to make factual enquiries, in order for me to take into account further evidence on the house keeper point it would have been necessary for there to be a re-opening of the trial, the adducing of further evidence and directions leading up to that process. If the defendant had at any stage made an application for orders to that effect and I had refused such applications, there might have been a platform for an application for permission to appeal. As it is in my judgment the defendant is seeking permission to appeal in effect against my refusal to allow applications which were never made. In my view that is hopeless.[31]Further in my view the cases of Charles v Hugh James, Jones and Jenkins and Dudarec are irrelevant to this application and of no assistance to the defendant. Those cases were concerned with the wholly different question of whether in a solicitor’s negligence case, the court, in making findings as to what would have happened but for the defendant’s negligence, could take account of evidence as to what actually happened which came to light subsequently and was before the court but which had not been available at the date of the trial which would have taken place but for the defendant’s negligence. Thus the factual situation which was considered in those cases was one in which factual evidence as to what actually occurred was before the court.[32]If in this case the defendant had made an application for permission to adduce evidence as to what actually occurred and that had been resisted by the claimant, it is of course possible to see how the defendant might have derived some assistance by analogy from those cases in arguing that where there was an opportunity to place before the court admissible evidence as to what actually occurred it should allow such evidence to be admitted and take it into account. However that is not what happened in this case. Because the defendant never made an application either to adduce further evidence or even for a postponement of the handing down of the quantum judgment to enable there to be an application to re-open the trial we never reached that stage. There is in my judgment no support in either of those authorities for the proposition that, in the absence of an application by either party and in the absence of the existence of any further admissible evidence, the court is under an obligation of its own motion to make further factual enquiries as to events occurring after the end of the trial.[33]I should mention that in her submission in support of her application for permission to appeal there was a hint of a suggestion that the reason Ms Mishcon did not make an application of the kind set out in (1) above or submissions to that effect was that at the hearing on 14 November 2008 I said that I did not wish to know what actually happened. If and to the extent that that suggestion was made it is in my judgement wholly misconceived. First it is clear from the transcript that in the relevant exchange I was not seeking to shut down any debate on the issue of whether there should be further evidence but merely seeking to avoid Mr Grace QC pre-empting any such debate or application by blurting out factual information before both parties had the opportunity to make submissions. Further and in any event as is clear from the transcript there then ensued a full discussion in the course of which I explicitly asked Ms Mishcon if she was making a submission. It is clear that had she wished to make either a submission or an application she had every opportunity to do so and was not in any way precluded from doing so by what I had said. The reality is that, as she confirmed at the hearing on 5 December 2008, that when she attended the 14 November 2008 hearing before I made the comment referred to above she had no instructions to make an application either that there should be an adjournment or for permission to adduce further evidence and that plainly remained the position both during the hearing and thereafter.[34]For these reasons in my judgment there is no realistic prospect of the defendant succeeding on this ground of appeal and I refuse permission.

The second ground of appeal

[35]The second discrete finding against which the defendant seeks permission to appeal relates to my award of damages under the Fatal Accidents Act for loss of dependency.[36]The finding which the defendant seeks permission to challenge is that Mrs Manning would probably have obtained full time employment from October 2008 at a rate of £35,000 a year gross. The ground of appeal is that I erred in not taking into account the alleged fact that since the trial the economy has gone into recession whereas Ms Mishcon’s closing submissions were made before the recession.[37]Ms Mishcon described this second ground of appeal, which she candidly accepted was being put forward with the benefit of hindsight, as a smaller point and one which she accepted does not have as much force as she thought it perhaps might have had. That is because when the point occurred to her on sight of the draft judgment , paragraph 274 thereof contained an error in which I incorrectly referred to Mr Manning’s death as having occurred in May 2002 rather than January 2008[38]Ms Mishcon did not submit that I should have delayed giving my quantum judgment so as to enquire into evidence on the effect of the recession either in Devon, where Mrs Manning was living at the time of her death or generally. Rather she submitted that the recession is just a fact that has occurred since the trial and should have been taken into account. Accordingly I should not have found that a woman who had not worked in 18 years would have been likely to have obtained employment at £35,000 a year by October 2008.[39]In my judgment there is no realistic prospect of this ground of appeal succeeding either. No evidence was led at trial nor were any submissions made by the defendant as to the state of the economy either nationally or locally in Devon either as at the date of trial or prospectively. Nor were any submissions made as to the likely effect on Mrs Manning’s prospects of obtaining employment of the existing and/or prospective state of the economy as it then appeared. The claim was advanced in the claimant’s schedule of loss on the basis of an assumption that Mrs Manning would have been able to earn on average £40,000 gross a year.. In the defendant’s counter schedule it was accepted that Mrs Manning would have found part time work at £25,000 a year, albeit with a smaller multiplier of 5 (compared to the claimant’s 6) to take account of contingencies.[40]My finding, having set out the evidence as to Mrs Manning’s employment background, was that she would have decided, following Mr Manning’s death in January 2008, to seek full time employment so as to support the children and seek to mitigate the financial effect of the loss of Mr Manning’s income. My view as expressed in the judgment was that it would have taken some time for her either to retrain or to obtain employment,and an award should be made on the assumption that she would probably have obtained full time employment from October 2008 at a rate of £35,000 a year gross. I further found that there should be a discount of 10% to take account of adverse contingencies.[41]It is to be inferred from the basis of the ground of appeal for which permission is sought that the defendant’s acceptance in the counter schedule of loss and in Miss Mishcon’s written closing submissions that Mrs Manning would probably have earned £25,000 a year after taking some time to decide what to do after Mr Manning’s death and then taking further time finding a job was made on the assumption that there would be no recession. It is of note that at no time between the close of the trial and the circulation of the draft judgment on 2 December 2008 did the defendant seek to withdraw that concession on the basis that the assumption on which it had been made had been vitiated by a subsequent recession. In those circumstances if I had accepted the defendant’s concession and found that Mrs Manning would have obtained part time employment at £25,000 a year it would hardly have lain in the defendant’s mouth to appeal such a finding on the basis that I erred in accepting the defendant’s own submission by ignoring a subsequent change in the economic climate which the defendant on no occasion submitted I should take into account.[42]Similarly in my judgment there is no realistic prospect of a successful appeal against my finding on the basis that it failed to take into account what Ms Mishcon referred to as the recession. Very limited evidence was adduced on the topic of the dependency claim at trial. Of necessity any finding on such a claim is bound to be approached on a fairly broad brush basis given the infinite number of variable factors which could affect the timing of Mrs Manning obtaining employment in the future and the rate at which she would have been paid. As it happens even at the time the quantum judgment was handed down there was no definitive evidence in the public domain as to the date on which the recession began. Still less was there sufficient information in the public domain to enable the court to take judicial notice of any change in the potential employment prospects of someone in Mrs Manning’s position between the date of the end of the trial and the quantum judgment.[43]If there had been any substance in this point, in my view, it is to be inferred that the defendant would have raised it at one of the hearings in 2008 to which I have referred or in written submissions. Again the position might have been different if an application had been made by the defendant to adduce evidence on the changed economic circumstances and their likely effect on Mrs Manning’s employment prospects. However no such application was ever made. I reject the application for permission to appeal against this finding also on the basis that in my judgment it has no realistic prospect of success.[44]Both at the outset and the conclusion of her application for permission to appeal Ms Mishcon hinted that she did not necessarily accept that the defendant needed permission to appeal on these two discrete quantum points .[45]This appeared to be on the basis that the defendant had already been granted permission to appeal by me against liability and the trial was a trial of both liability and quantum. This was in my judgment wholly misconceived. As appears above it is plain beyond peradventure that I had previously only given permission to appeal against my findings and judgment on liability. This was ultimately accepted by Ms Mishcon. For the avoidance of doubt it is in my judgment entirely clear that the defendant requires permission to appeal against any aspect of my quantum judgment.[46]Finally I should explain why I have taken the unusual course of setting out my reasons for refusing permission to appeal at such length. In the ordinary course where a party applies for permission to appeal against a judgment or finding there has already been a reasoned judgment explaining the decision or order which the party seeks permission to appeal against. There thus exists a reasoned judgment setting out the judge’s reasons for making the decision and order which he did. One of the bizarre and surprising aspects of this application for permission to appeal is that, as I have explained, it is based on an argument that I erred in failing to do something which the defendant never invited me to do. It follows that there is, by definition, no judgment setting out my reasons for having failed to do what the defendant now submits I should have done. In those circumstances, and given the importance to my reasons for refusing permission of the detailed chronology and various exchanges in court which are set out above , it seems to me important that my reasoning should be set out. No doubt if the defendant seeks permission to appeal from the Court of Appeal it will save time and therefore costs if this judgment is before the Court of Appeal, to whom it should therefore be made available on any such application.