Cameron Marshall v Bath and North East Somerset Council [2024] EWHC 2551 (Admin)

“(1) As regards the financial year beginning in 1993 and subsequent financial years, each billing authority shall, in accordance with this Part, levy and collect a tax, to be called council tax, which shall be payable in respect of dwellings situated in its area.”

“(1) Council tax shall be payable in respect of any dwelling which is not an exempt dwelling. (2) In this Chapter— ‘chargeable dwelling’ means any dwelling in respect of which council tax is payable; ‘exempt dwelling’ means any dwelling of a class prescribed by an order made by the Secretary of State. (3) For the purposes of subsection (2) above, a class of dwellings may be prescribed by reference to such factors as the Secretary of State sees fit. (4) Without prejudice to the generality of subsection (3) above, a class of dwellings may be prescribed by reference to one or more of the following factors— (a) the physical characteristics of dwellings; (b) the fact that dwellings are unoccupied or are occupied for prescribed purposes or are occupied or owned by persons of prescribed descriptions.” ‘chargeable dwelling’ means any dwelling in respect of which council tax is payable; ‘exempt dwelling’ means any dwelling of a class prescribed by an order made by the Secretary of State. (a) the physical characteristics of dwellings; (b) the fact that dwellings are unoccupied or are occupied for prescribed purposes or are occupied or owned by persons of prescribed descriptions.”

“(1) The person who is liable to pay council tax in respect of any chargeable dwelling and any day is the person who falls within the first paragraph of subsection (2) below to apply, taking paragraph (a) of that subsection first, paragraph (b) next, and so on. (2) A person falls within this subsection in relation to any chargeable dwelling and any day if, on that day— (a) he is a resident of the dwelling and has a freehold interest in the whole or any part of it; (b) he is such a resident and has a leasehold interest in the whole or any part of the dwelling which is not inferior to another such interest held by another such resident; (c) he is both such a resident and a statutory, secure or introductory tenant of the whole or any part of the dwelling; … (d) he is such a resident and has a contractual licence to occupy the whole or any part of the dwelling; (e) he is such a resident; or (f) he is the owner of the dwelling. (3) Where, in relation to any chargeable dwelling and any day, two or more persons fall within the first paragraph of subsection (2) above to apply, they shall each be jointly and severally liable to pay the council tax in respect of the dwelling and that day. (4) Subsection (3) above shall not apply as respects any day on which one or more of the persons there mentioned fall to be disregarded for the purposes of discount by virtue of paragraph … 4 (students etc.) of Schedule 1 to this Act and one or more of them do not; and liability to pay the council tax in respect of the dwelling and that day shall be determined as follows— (a) if only one of those persons does not fall to be so disregarded, he shall be solely liable; (b) if two or more of those persons do not fall to be so disregarded, they shall each be jointly and severally liable. … (5) In this Part, unless the context otherwise requires— ‘owner’, in relation to any dwelling, means the person as regards whom the following conditions are fulfilled— (a) he has a material interest in the whole or any part of the dwelling; and (b) at least part of the dwelling or, as the case may be, of the part concerned is not subject to a material interest inferior to his interest; ‘resident’, in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling.” (a) he is a resident of the dwelling and has a freehold interest in the whole or any part of it; (b) he is such a resident and has a leasehold interest in the whole or any part of the dwelling which is not inferior to another such interest held by another such resident; (c) he is both such a resident and a statutory, secure or introductory tenant of the whole or any part of the dwelling; … (d) he is such a resident and has a contractual licence to occupy the whole or any part of the dwelling; (e) he is such a resident; or (f) he is the owner of the dwelling. (a) if only one of those persons does not fall to be so disregarded, he shall be solely liable; (b) if two or more of those persons do not fall to be so disregarded, they shall each be jointly and severally liable. ‘owner’, in relation to any dwelling, means the person as regards whom the following conditions are fulfilled— (a) he has a material interest in the whole or any part of the dwelling; and (b) at least part of the dwelling or, as the case may be, of the part concerned is not subject to a material interest inferior to his interest; ‘resident’, in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling.”

“Class K: an unoccupied dwelling— (a) which was last occupied as the sole or main residence of a qualifying person (‘the last occupier’); and (b) in relation to which every qualifying person is a student and either— (i) has been a student throughout the period since the last occupier ceased to occupy the dwelling as his sole or main residence; or (ii) has become a student within six weeks of the day mentioned in sub-paragraph (i)” “Class N: (1) A dwelling which is either— (a) occupied by one or more residents all of whom are relevant persons; or (b) occupied only by one or more relevant persons as term time accommodation; (2) for the purposes of paragraph (1), (a) ‘relevant person’ means— (i) a student; … (b) a dwelling is to be regarded as occupied by a relevant person as term time accommodation during any vacation in which he— (i) holds a freehold or leasehold interest in or licence to occupy the whole or any part of the dwelling; and (ii) has previously used or intends to use the dwelling as term time accommodation”

“(1) A person may appeal to a valuation tribunal if he is aggrieved by— (a) any decision of a billing authority that a dwelling is a chargeable dwelling, or that he is liable to pay council tax in respect of such a dwelling; … … (4) No appeal may be made under subsection (1) above unless— (a) the aggrieved person serves a written notice under this subsection; and (b) one of the conditions mentioned in subsection (7) below is fulfilled. (5) A notice under subsection (4) above must be served on the billing authority concerned. (6) A notice under subsection (4) above must state the matter by which and the grounds on which the person is aggrieved. (7) The conditions are that— (a) the aggrieved person is notified in writing, by the authority on which he served the notice, that the authority believes the grievance is not well founded, but the person is still aggrieved; … (8) Where a notice under subsection (4) above is served on an authority, the authority shall— (a) consider the matter to which the notice relates; (b) include in any notification under subsection (7)(a) above the reasons for the belief concerned; …” (a) any decision of a billing authority that a dwelling is a chargeable dwelling, or that he is liable to pay council tax in respect of such a dwelling; … (a) the aggrieved person serves a written notice under this subsection; and (b) one of the conditions mentioned in subsection (7) below is fulfilled.

“(1) Where the valuation officer is not of the opinion that a proposal is well founded, and (a) the proposal is not withdrawn and (b) there is no agreement as provided in reg 11, the disagreement shall .... be referred by the valuation officer, as an appeal by the proposer against his refusal to alter the list, to the relevant valuation tribunal.” (See also regulation 12(2) and regulations 2(1), 9 and 11.) The Lands Tribunal said at 86-87: “I agree with counsel for the valuation officer that the scope of the ‘disagreement’ and the valuation officer’s ‘refusal to alter the list’ are limited by the wording of the proposal (see also reg 9 which relates the alteration of the list to the proposal where the valuation officer is of the opinion that the proposal is well founded). In these appeals the valuation officer was of the opinion that the originating proposals were not well founded and referred this ‘disagreement’ to the Central London Valuation Tribunal as an ‘appeal by the proposer against his refusal to alter the list’. The tribunal reduced the assessment to a rateable value of £100 with an effective date of the 30th January 1995, the date of the commencement of the building works giving rise to the proposal (the material change of circumstances). The ratepayers appealed to this tribunal against the reduced assessment and the effective date. This is the first time that the effective date became an issue: it was not raised before the valuation tribunal. The jurisdiction of a local valuation tribunal is limited to determining the appeal or ‘disagreement’ under reg 12 (1) (see regs 2(1) (definition of appeal) and 44 (1) (orders)), which arises out of the originating proposal. It is clear from the provisions of reg 11 (1) that the terms of a proposal govern the alteration of the rating list and that an agreement to alter the list ‘in terms other than those contained in the proposal’ requires the consent of the persons specified in para (2) of the regulation.”

“(1) An appeal shall lie to the High Court on a question of law arising out of a decision or order which is given or made by the VTE on an appeal under section 16 of the 1992 Act … … (4) The High Court may confirm, vary, set aside, revoke or remit the decision or order, and may make any order the VTE could have made.”

“20. The approach of the High Court on an appeal such as this from a decision of a First-tier Tribunal is very clear: absent a patent error of law or findings of fact which simply cannot be justified on the evidence, the High Court will not interfere. A court sitting on appeals such as this will not substitute its own judgment on the facts found by a Tribunal merely because it comes to a different conclusion on the facts or the balance to be struck amongst a number of competing factors.”

“(1) If the case contains anything which on its face is an error of law and which bears upon the determination, that is an error of law. (2) A pure finding of fact may be set aside as an error of law if it is found without any evidence or upon a view of the facts which could not reasonably be entertained. (3) An error of law may arise if the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. (4) It is all too easy for a so-called question of law to become no more than a disguised attack on findings of fact which must be accepted by the courts. The nature of the factual enquiry which an appellate court can undertake is different from that undertaken by the Tribunal of fact. The question is: was there evidence before the Tribunal which was sufficient to support the finding which it made? In other words, was the finding one which the Tribunal was entitled to make? (5) For a question of law to arise in those circumstances, the appellant must first identify the finding which is challenged; secondly, show that it is significant in relation to the conclusion; thirdly, identify the evidence, if any, which was relevant to that finding; and fourthly, show that finding, on the basis of that evidence, was one which the Tribunal was not entitled to make. What is not permitted is a roving selection of the evidence coupled with a general assertion that the tribunal’s conclusion was against the weight of the evidence and was therefore wrong. (6) An appeal court should be slow to interfere with a multi-factorial assessment based on a number of primary facts, or a value judgment. Where the application of a legal standard involves no question of principle, but is simply a matter of degree, an appellate court should be very cautious in differing from the judge’s evaluation. Where a decision involves the application of a not altogether precise legal standard to a combination of features of varying importance, this will fall within the class of case in which an appellate court should not reverse a judge’s decision unless he has erred in principle. (7) Where the case is concerned with an appeal from a specialist Tribunal, particular deference is to be given to such tribunals, for Parliament has entrusted them, with all their specialist experience, to be the primary decision maker. Those tribunals are alone the judges of the facts. Their decisions should be respected unless it is quite clear they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.”

“3. In accordance with ordinary principles where there is a challenge on a question of law, it is for the appellant to show that the tribunal made an error of law on the material before it. This court is not looking at the evidence to make a fresh decision, and no fresh material may be placed before the court in an attempt to undermine findings of fact by the tribunal. 4. It is not strictly right to assert, as it is in the respondent’s skeleton argument, that there can be no appeal against findings of fact. But on such a challenge the appellant must show that no reasonable tribunal could have come to that conclusion on the evidence before it. Only if this hurdle is surmounted can the decision be challenged as an error of law.”

“I wish to claim Class K exemption because I am a full time student studying law. I resided in the property at 45 Gt Pulteney Street from 24 November as my home. I have now left to continue my studies. Please also reimburse the £545.21 paid so far [that is, the instalments that fell due on 1 January and on 1 February 2023].”

“As I have already explained to you the utilities bills for the property and service charge have been met by my parents. So I will not be providing any further evidence of residence. If you reject my application then the matter will go to the Valuation Tribunal. I hope this will not be necessary as you will simply be wasting everyone’s time on any unnecessary procedure.”

“We would require the following to show Cameron was living at the property from November 2022 onwards: • Utility bills showing usage (we do not accept estimates) • Broadband bill • Bank/credit statements for whole period • The date Cameron left the property • Evidence whether the previous tenancy was let furnished or unfurnished • Inventory for previous tenancy • Check out documents for previous tenancy • Any evidence of furniture being delivered to the property for Cameron • Resubmitted original photographs - this to check the metadata as property was also listed unfurnished this month ♦ Any documentary evidence showing Cameron was resident, e.g. driving licence (already requested), bank statements, NHS documents, mobile phone bill, TV subscription etc.”

“The vacation date from the property was 3 January 2023 although I made short visits from the property to Richmond in the intervening period. I have already explained in my second email to your colleague that the documents you have requested are not available and would not assist you. The utilities for this property were and are paid for by my parents, there is no broadband bill paid for by me, banking documents will not help you because I did not pay for expenses at the property, I have given you the date of departure above, the evidence of the previous tenancy has already been provided, the tenants brought their own furnishings so there is no inventory, my parents provided my furnishings, you are mistaken about listings - there has been no re-listing; the photos are from a phone; the documentary position has already been addressed in previous emails. I should add that, with funding from my parents, I have been improving and replacing the furniture at the property. You cannot obstruct an appeal to the valuation tribunal by repeating questions that have already been answered. You must either accept the appeal or decline it. In the latter event the matter will go the Tribunal.”

“According to the Land Registry, the leaseholders are Mr Philip Scott Marshall, Mr Cameron Rafe Marshall, Ms Tamsin Elizabeth Jane Marshall and Mr Alasdair James Marshall. Therefore, they are liable for the Council Tax under Section 6(2)(f) of the Local Government Finance Act 1992 for any period the property is unoccupied. As such, all listed owners are qualifying persons as defined by Article 2(1) of the Council Tax (Exempt Dwellings) Order 1992. Regardless of whether Cameron Marshall had his main residence at the property for the 41 days claimed, a claim for which you have provided no evidence of, the other named owners did not have their main residences there nor has evidence been provided that they all [sic] full-time students in any case. Therefore, your application for a Class K Exemption is refused as the full criteria under Article 3 of the Council Tax (Exempt Dwellings) Order 1992 has [sic] not been met.”

“As explained in my communications with the Council I am a full time student. I moved into the property as my residence on 24 November 2022. I then left the property on 3 January 2023 to attend my studies at BPP Law School in London. I have claimed Class K exemption. The Council has refused my application without proper grounds.”

“9. The council accepted that the Appellant had provided evidence of their [sic] student status, but the student certificate he provided gave a term and home time address in Richmond. The Appellant advised that this was the address at the start of their course and where they were currently living (Evidence 8). The council asked for further evidence that he had been resident at Great Pulteney street since November 2022, and the date that he left the property (Evidence 9). This request was made under Regulation 3 of the Council Tax (Administration & Enforcement) Regulations 1992 and Schedule 3 of the Local Government Finance Act 1992. 10. The Appellant advised that he had left the property on 03.01.2023, and there was no further evidence that could be provided to show that he had been resident there (Evidence 10). All utilities were paid by his parents, he did not pay for any expenses at the property so banking documents would not corroborate his presence there, the property had been furnished by his parents and with their help he had been improving and replacing furniture at the property. 11. There followed further email correspondence between the council and the Appellant, which did not alter the position of either party. The council issued a final decision on 18th April 2023 (Evidence 11), to confirm that Cameron Marshall was not entitled to a class K exemption, because he did not have his main residence at 45 Great Pulteney Street from 24th November 2022 to 3rd January 2023. As a non-resident owner he was jointly liable for council tax alongside the other owners of the property, and they were not full-time students for the period in question, nor did they have their main residence there. … 13. It would be relatively straightforward to provide evidence that the Appellant was living at the property between 22nd November 2022 and 3rd January 2023. For example, a bank statement showing transactions carried out in the area for living costs would support his statement, however this and other evidence has not been provided, and he has asserted that his parents paid expenses for the 41 days that he was resident there. In the absence of any compelling evidence, other than the appellant’s word which has been provided throughout by emails from his father’s work email address, the council believes that on balance of probabilities his main residence was not at Great Pulteney Street and the request for a class K exemption is a means of trying to avoid paying the council tax which is due.”

“9. In the autumn of 2022 my plans and those of my family changed in respect of the Property. My girlfriend had begun studying law at Bristol University. Also my sister had decided to make her home in Bath and other close relatives (specifically my aunt Susan Mitchell and her family) had also moved to the area. I also had a number of friends who were studying at Bath University. It was in these circumstances that I became interested in moving to Bath when the opportunity arose, to stay in the Property as my main home when not attending my course in London. 10. The opportunity did arise when the tenants served a break notice on 22 September 2022 terminating their lease on 24 November 2022. A copy of the break notice is in exhibit ‘CM1’. 11. I moved into the Property as my main home when the tenants moved out on 24 November 2022. This was towards the end of my university term. I refer to it as my main home given that I also had a temporary residence as a student in London. 12. After I had dealt with the move I returned to London during the working week until my course finished in December 2022. On most weekends I returned to the Property in Bath. I then stayed at the Property for the bulk of the Christmas holidays period, leaving on 3 January 2023 to return to London for my course. I returned to Bath for many weekends and during the Easter holiday and revision period.”

“3. As I mentioned in my first statement I assisted my son in dealing with Council Tax for 45 Great Pulteney Street, Bath BA2 4DR (‘the Property’). In dealing with the Council’s enquiries regarding payment of utility bills and similar items my son explained to me that the focus was on the dates between 24 November 2022 and 3 January 2023. He did not have such bills from this period, they were paid for by his mother. It will be seen from his evidence that he does have such bills from shortly afterwards and these have been exhibited to his statement. When I drafted a response to the Council’s enquiries on the topic after it became contentious I was not aware that he had taken over payment for some items from his mother shortly after 3 January 2023. I regret that this is reason for the error in the response to the questions raised by the Respondent prior to the appeal being brought.”

“10. The BA [Billing Authority: that is, the respondent] provided the joint evidence bundle which included the parties’ statement of cases; an extract of the land registry entry; a student certificate issued by BPP law school; a copy of a tenancy agreement signed by the former tenant on 24 March 2022; a witness statement from the appellant; a witness statement from Mr P Marshall; utility bills and correspondence that had passed between the parties. Prior to the hearing Mr Marshall provided the Court of Session judgment of Inland Revenue v Cadwaleder [sic], the House of Lords judgment of Levene v Commissioners of Inland Revenue and a decision of this Tribunal DE v Wakefield Council (appeal number 4725M179333/254C). 11. Mr Marshall argued that the appellant, his son, (Mr CM) had resided in the appeal property from 24 November 2022 until 3 January 2023. 12. As his son was a student and he jointly owned the appeal property, he was unable to provide much evidence that it was his main home for the period in dispute. 13. The BA had decided that there was no evidence to support Mr CM residing in the appeal property and therefore it refused to award the exemptions.”

“17. There was no dispute that the appellant was a joint owner of the appeal property or that he was a student. However, the task for the panel was to decide if the appellant had occupied the appeal property as his main home. If the panel determined that the appeal property was his sole or main residence, he would be entitled to the class N, or, the class K exemption if it had been left empty.”

“20. The panel understood that being a student, the appellant may not have much evidence to support the appeal property being his main residence, such as mortgage statements, payslips, a driving licence or a car. … 22. The panel noted that the BA had requested further evidence, but the appellant had not provided any evidence apart from utility bills, but there were drawbacks with the evidence produced as they did not confirm the usage or the period they covered. However, as [the appellant] only stayed there at weekends, to see his girlfriend who was studying in Bristol University, the usage would have been low. The panel also applied less weight to letter confirming the internet connection as that stated that it would ‘go live from 19 January 2023’, which was a date after the period in dispute. 23. The panel also noted that an email was produced which confirmed that the appellant would be present for a test of the fire alarm system on 21 December, but the email did state that the appellant was ‘back and forth to London’. 24. Mr Marshall argued that even though [the appellant] only stayed in the appeal property at the weekends this would not deprive [the appellant] of having his main residence there. Whilst absences of long or short duration would not deprive someone of having a main residence, the panel must be satisfied that the appeal property was [the appellant’s] main residence for the period in dispute.”

“My Lords, the word ‘reside’ is a familiar English word and is defined in the Oxford English Dictionary as meaning ‘to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place’. No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word ‘reside’. In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time Io time he leaves it for the purpose of business or pleasure. Thus, a master mariner who had his home at Glasgow where his wife and family lived, and to which he returned during the intervals between his sea voyages, was held to reside there, although he actually spent the greater part of the year at sea: In re Young-, Rogers v Inland Revenue.”

“In my judgment it is beyond contention that the question for the purposes of s. 2 of the Act 1988, what is a person’s main residence, is not to be determined purely by reference to the amount of time he spends there. The tribunal in the present case plainly addressed the issue by considering what, in substance, was the chargepayer’s home, what was the place to which he returned whenever possible, how strong were his links with that place. I have no hesitation in concluding that all the factors which they took into account, and in particular the residence of his family in the Kennet house and his part ownership of it, were indeed relevant factors for them to consider. That being so, the chargepayer could only succeed if though they regarded relevant factors and, in my judgment, no irrelevant factors, their decision was nevertheless, in truth, perverse. I am quite unable to hold that it was. But the chargepayer’s primary case was, that though home is where the heart is, as he put it, and his was very much with his wife and children, nevertheless considerations of that kind ought not to determine the statutory question what was his main residence. In my judgment considerations of that kind are indeed material to the statutory question.”

“I bear in mind fully the quotations from Viscount Cave’s speeches in those two Revenue cases but, despite what he there said, there was no evidence before this tribunal to displace what plainly was the inference which they drew, namely that where a husband lives partly in one place and partly in a place albeit for a lesser period quantitatively viewed than he lives on his own, that nevertheless it may reasonably be presumed that the place where his wife and child live are his main residence.”

“It is to be noted that the tribunal had regard to the fact that all utilities accounts for the Mexborough property were in Mrs Stark’s name. Whilst this was, in my judgment, a relevant consideration it could not on any view be a determinative one given the exercise that the tribunal had to perform. On analysis it is clear that the tribunal had no regard to the following factors which were identified by Hutchinson J in the Bradford case as relevant to the issue to be decided here: (1) Corporal Stark’s security of tenure at the Mexborough house; (2) the fact that he spent his time there when off duty; (3) the fact that if he was not employed by the Royal Air Force he would return to that house; and (4) the fact that the house was his marital home. All these factors, in my judgment, were factors to be taken into account by the tribunal. Had the tribunal taken them into account I am satisfied that, in the light of its other findings of fact, it could not properly have allowed Corporal Stark’s appeal but would have been bound to conclude that his sole or main residence was at Mexborough. Therefore, the council’s appeal must be allowed.”

“Where an Act confers power to make subordinate legislation, expressions used in that legislation have, unless the contrary intention appears, the meaning which they bear in the Act.”

“36. In this judgment I address civil proceedings and leave to one side questions of criminal procedure. It is trite law that as a generality in civil proceedings, the claimant bears the burden of proof in establishing his or her case. It is trite law that the role of an expert is to assist the court in relation to matters of scientific, technical or other specialised knowledge which are outside the judge’s expertise by giving evidence of fact or opinion; but the expert must not usurp the functions of the judge as the ultimate decision-maker on matters that are central to the outcome of the case. Thus, as a general rule, the judge has the task of assessing the evidence of an expert for its adequacy and persuasiveness. But it is trite law that English law operates an adversarial system, and the parties frame the issues for the judge to decide in their pleadings and their conduct in the trial. It is also trite law that, in that context, it is an important part of a judge’s role to make sure that the proceedings are fair. At the heart of this appeal lies the question of the requirements of a fair trial.”

“42. It is the task of a judge in conducting a trial in an adversarial system to make sure that the trial is fair. It is the task of the judiciary in developing the common law, and the makers of the procedural rules, to formulate rules and procedures to that end. One such long-established rule is usefully set out in the current edition of Phipson on Evidence 20th ed. (2022). Bean LJ quoted the previous edition, which was in materially the same terms, at the start of his dissenting judgment. At para 12-12 of the 20th edition the learned editor states: ‘In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases … In general the CPR does not alter that position. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.’ This statement is supported by case law, some of which I discuss below, and has often been cited with approval by the Court of Appeal. … 43. I am satisfied that the statement in Phipson is correct and, as explained below, it summarises a longstanding rule of general application. It is not simply a matter of extensive legal precedents in the case law. It is a matter of the fairness of the legal proceedings as a whole. While many of the cases may have been concerned with challenges to the honesty of a witness, I see no rational basis for confining the rule to such cases or those analogous categories, such as allegations of bad faith or aspersions against a witness’s character, as Mr Stevens suggests.”

“61. From this review of the case law it is clear that there is a long-established rule as stated in Phipson at para 12.12 with which practising barristers would be familiar, as Bean LJ suggested in para 87 of his judgment. There are also circumstances in which the rule may not apply. Several come to mind. First, the matter to which the challenge is directed is collateral or insignificant and fairness to the witness does not require there to be an opportunity to answer or explain. A challenge to a collateral issue will not result in unfairness to a party or interfere with the judge’s role in the just resolution of a case; and a witness in such a circumstance needs no opportunity to respond if the challenge is not an attack on the witness’s character or competence. 62. Secondly, the evidence of fact may be manifestly incredible, and an opportunity to explain on cross-examination would make no difference. … 63. Thirdly, there may be a bold assertion of opinion in an expert’s report without any reasoning to support it … 64. Fourthly, there may be an obvious mistake on the face of an expert report. … … 66. Fifthly, the witnesses’ evidence of the facts may be contrary to the basis on which the expert expressed his or her view in the expert report. … 67. Sixthly, as occurred in Edwards Lifesciences, an expert has been given a sufficient opportunity to respond to criticism of, or otherwise clarify his or her report. For example, if an expert faces focused questions in the written CPR Pt 35.6 questions of the opposing party and fails to answer them satisfactorily, a court may conclude that the expert has been given a sufficient opportunity to explain the report which negates the need for further challenge on cross-examination. 68. [The seventh example has no relevance to this case.] 69. Because the rule is a flexible one, there will also be circumstances where in the course of a cross-examination counsel omits to put a relevant matter to a witness and that does not prevent him or her from leading evidence on that matter from a witness thereafter. In some cases, the only fair response by the court faced with such a circumstance would be to allow the recall of the witness to address the matter. In other cases, it may be sufficient for the judge when considering what weight to attach to the evidence of the latter witness to bear in mind that the former witness had not been given the opportunity to comment on that evidence. The failure to cross-examine on a matter in such circumstances does not put the trial judge ‘into a straitjacket, dictating what evidence must be accepted and what must be rejected’: MBR Acres Ltd v McGivern [2022] EWHC 2072 (QB), para 90 per Nicklin J. This is not because the rule does not apply to a trial judge when making findings of fact, but because, as a rule of fairness, it is not an inflexible one and a more nuanced judgment is called for. In any event, those circumstances, involving the substantive cross-examination of the witness, are far removed from the circumstances of a case such as this in which the opposing party did not require the witness to attend for cross-examination. 70. In conclusion, the status and application of the rule in Browne vDunn and the other cases which I have discussed can be summarised in the following propositions: (i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses. (ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair. (iii) The rationale of the rule, i.e. preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness. (iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty. (v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself. (vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty. (vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule. (viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.” ‘In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point. The rule applies in civil cases … In general the CPR does not alter that position. This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.’ (i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses. (ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair. (iii) The rationale of the rule, i.e. preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness. (iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty. (v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself. (vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty. (vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule. (viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances.”