PI Brief Update

Editorial: Can the Court of Appeal make mistakes? - Aidan Ellis, Temple Garden Chambers

26/01/12. I have spent my spare time this month preparing to deliver a webinar on credit hire. It is never easy to give a useful seminar on a topic that many people will be familiar with already. Happily, the law on credit hire rarely stands still, and there is plenty of new material to discuss.

Take for example the recent case in Sayce v TNT 2011 EWCA Civ 1583. The case is remarkable on its facts, since HHJ Harris QC declined to follow the directly relevant Court of Appeal decision in Copley v Lawn 2009 EWCA Civ 580. Not only did this ignore the doctrine of precedent, but it also went behind the basis on which the parties had argued the case in front of him. Of course, this alone was sufficient to allow the appeal.

But if HHJ Harris QC intended to make a point about the Court of Appeal decision in Copley, he certainly succeeded. In Sayce, Moore-Bick LJ “respectfully question[ed]” and “respectfully doubt[ed]” the analysis in the earlier case, before confessing that he had difficulty with the conclusion that the Court of Appeal reached in Copley v Lawn. 

It is, of course, inevitable that there is some level of disagreement among senior Judges on difficult issues. Often that disagreement remains off-stage. Where it is openly expressed, as it is in Sayce, it can only act as an invitation to Insurers to continue arguing and appealing the point. I doubt that we have heard the last of this issue. 

Aidan Ellis

Image cc Ian Britton