Friday Law Report: Professional judge's duty to give reasons

26 February 1999

Flannery and another v Halifax Estate Agencies Ltd

Court of Appeal (Lord Justice Henry, Lord Justice Laws and Mr Justice Hidden) 18 February 1999

THE COURT of Appeal gave guidance on the general duty of a professional judge to give reasons for his decision.

The appeal of the plaintiffs against the decision of a county court judge dismissing their claim for professional negligence against the defendants was allowed by the Court of Appeal, and a new trial was ordered.

The plaintiffs bought a flat with the benefit of a mortgage, and the defendants were asked by the building society to carry out a valuation. Their valuation report, prepared by a Mr Haining, stated in relation to "heave, landslip or settlement" that "no undue hazards were apparent at the time of inspection".

The plaintiffs subsequently put their flat on the market and received an offer. The prospective purchaser's building society, by coincidence, also asked the defendants to carry out a survey of the property. That survey was conducted by a different surveyor, Mr Earley, who reported that the property was affected by structural movement. The purchaser withdrew, and the plaintiffs sued the defendants for professional negligence in relation to the original valuation.

At the trial, the central issue was factual, i.e. whether or not the property was suffering from foundation subsidence at the time of the original survey. The plaintiffs called an expert valuer and an expert engineer, but Mr Earley did not give evidence. The defendants called Mr Haining, and an expert valuer and an expert engineer. The judge gave a reserved judgment in which he found for the defendants, saying that he preferred their expert evidence to that of the plaintiffs, but giving no reasons for that preference. The plaintiffs appealed, on the ground that the judge had failed to give reasons for his decision.

Paul Darling (Pannone & Partners) for the plaintiffs; Graeme McPherson (Wragge & Co) for the defendants.

Lord Justice Henry said that the general duty of a professional judge to give reasons was clear: see R v Knightsbridge Crown Court, ex p International Sporting Club [1982] QB 304.

The duty to give reasons was a function of due process, and therefore of justice. Fairness required that the parties, especially the losing party, should be left in no doubt why they had won or lost, otherwise the losing party would not know whether the court had misdirected itself, and thus whether he might have an appeal available on the substance of the case. A want of reasons might, therefore, be a good self- standing ground of appeal. Further, a requirement to give reasons concentrated the mind: if it were fulfilled, the resulting decision was much more likely to be soundly based on the evidence than if it were not.

What was required to fulfil the duty depended upon the subject matter. Where there was a straightforward factual dispute depending simply upon the truthfulness of the witnesses it was likely to be enough for the judge to indicate that he believed one rather than the other; indeed there might be nothing else to say.

Where, however, the dispute involved something in the nature of an intellectual exchange with reasons and analysis advanced on either side, the judge had to enter into the issues canvassed before him and explain why he preferred one case over the other. That was likely to apply particularly in litigation where there was disputed expert evidence, but it was not necessarily limited to such cases.

The rule, however, was the same in both types of case: the judge had to explain why he had reached his decision. What was required of the judge in order to do that would differ from case to case. Transparency should be the watchword.

In accordance with the new Practice Direction on leave to appeal, leave should be sought from the trial judge immediately after judgment was delivered. On the application for leave, if a "no reasons" point were being taken, the judge should be invited to give his reasons, and his explanation for not having set them out in the judgment, in an affidavit for use at the hearing if leave be granted.