The appeal judge states:

  1. The county court judge decided based on arguments that are plainly available to her.
  2. The county court judge fell into error in concluding that the non-delegable nature of the Defendant’s duty to the Claimant was somehow relevant to the Part 20 claim.
  3. Had the Defendant considered that the county court judge reasons were inadequate then the proper course would have been to ask the county court judgment to provide further reasons in accordance with the guidance set out in English v Emery Reimbold & Strick Ltd [2002] W.L.R. 2409. The defendant advisors would have had plenty of time in which to do this because the county court judgment was circulated in draft form to all the parties more ten weeks before it was eventually handed down.
  4. The trial barrister failed to present arguments to the county court judge, that the appeal barrister presented in the appleallate hearing.
  5. The county court judge may have been persuaded to have reached a different conclusion had she had the advantage of the arguments presented before me on this appeal but that is not to the point.
  6. The Defendant cannot now be heard to complain that if the case had been differently presented below then he may have won. So long as the Judge’s conclusion was consistent with the evidence then her decision must stand. It was and it does. This appeal is dismissed.

Who can ask the judge to interpret this judgement: who is responsible? The first barrister or the defendant? If the first barrister, can the defendant claim for barrister professional negligence?

  • 1
    What you mean "to interpret"? Is the judgement not clear enough?
    – Greendrake
    Jun 27, 2021 at 5:25

4 Answers 4


The appeals court has found that the county court judge made a decision that was consistent with the evidence that was presented at trial. As such, the decision is sound.

It appears that the defendant tried to present additional/different evidence or different arguments about the law in the appeal than they did at trial - this is not permitted. As to responsibility, the defendant and their legal team were responsible for deciding how to run their case and what evidence to present and what arguments to run. What evidence to present and how to present it and what submissions to make on the law is a tactical decision for each party. You can get it wrong. That doesn't let you try again on appeal.

If your barrister has been negligent, and that directly caused you to lose, you can sue your barrister.

In terms of interpreting a particular paragraph of a judgement, the appeals court may or may not make comment on a particular paragraph but the reasons, while important, are not really subject to interpretation other than that. A judgement will give orders, these should be very precise and not open to interpretation - things like "the defendant will pay X to the plaintiff" or "the case is dismissed" etc.

  • Different arguments about the law not permitted on appeal? C'mon. If you are asserting an error of law made by lower court (which is what you normally do on appeal) you will inevitably present somewhat different arguments about the law than what you originally did — you will never just reiterate the old ones.
    – Greendrake
    Jun 27, 2021 at 11:43
  • 1
    @Greendrake You don't present new or different arguments. You show the argument and supporting facts you gave in the original trial, and then show how the Judge's findings about that are inconsistent with the law. Appeal is not a do-over, its a way to correct mistakes made by the court in the original trial. You can only appeal if you can point to an actual mistake made by the judge. Jun 27, 2021 at 15:52
  • 2
    @DaleM "Barristers cannot be sued for negligence" —— this is very wrong for 20 years or so; see the House of Lords decision in Arthur JS Hall & Co v Simons publications.parliament.uk/pa/ld199900/ldjudgmt/jd000720/…
    – user38749
    Jun 27, 2021 at 20:41
  • @PaulJohnson Pointing to an actual mistake made by the judge and articulating why it is a mistake is itself an argument of law, isnt it? And it would clearly not have been presented in the original proceeding.
    – Greendrake
    Jun 27, 2021 at 22:03
  • 1
    @Greendrake - you're missing the point. Yes its a different argument, but its also a totally different question too. In the trial hearing, you ask a judge to decide that the law is on your side about the original matter (whatever that is), and your barrister presents arguments for that purpose. In the appeal hearing, you ask a senior judge to rule that a judge applied the law incorrectly or unreasonably in some case, and your (new) barrister presents arguments for that purpose. The 2 hearings are not in law arguing the same thing, or re-arguing the same matter, so that's not an issue.
    – Stilez
    Jun 29, 2021 at 7:42

The original hearing

In the original hearing (the trial hearing), you employed a barrister to argue that someone else should compensate you or do something, because of some matter they did wrong.

Now, law is not magic. Like many other things in life, its up to the Claimant to make their own arguments, and they can do it well or badly. They can employ/engage a legal team who are on the ball or fluff it. A star team or Joe & Co their family usually uses. They can by chance have a judge who is more inclined to be sympathetic or skeptical of their character or testimony, or the experts/witnesses (if any). They and their team can choose brilliant or weak tactics. They can find their opponents are also on the ball or present the defence case poorly. And so on.

Crucially, like many other things in life, it is how it is. If your team do badly or miss a key play, you don't get to automatically have a rematch, even if it's wrong or unfair. You stand or fall, by what happens in court , on the day. If the law was applied reasonably and appropriately, then by and large one shot is all you get, to make your point.

You might as well ask for the Cup Final to be replayed because in hindsight during after-match analysis or chatting at the pub, you realise that somehow you or the captain didn't think about tasking a team member with marking the right person, didn't substitute the sick player by a more prepared one, or the team missed a key play on the day. "We'd clearly have been able to win with ease, if Player B had replaced player A, or we'd chosen tactic B instead of tactic A, or if the team had played to their usual/expected standard, so we want a rematch with those changes". It just doesn't happen. That was the day, and that was your hearing.

Dissecting and understanding the appeal ruling

When you appeal, by and large, you are asking a senior judge, "I think the trial judge made a ruling that couldn't possibly be what the law says, or was so unreasonable and perverse an outcome that no judge hearing what they heard, seeing what they saw, could fairly reach that decision within the law. These are our arguments why that's so, please review if they followed the law and did so in a way that was reasonable, based on what was shown and presented".

So an appeal isn't a retrial. Its a pure review of the decision making aspect, in which you argue the decision process just doesn't match either the evidence and facts presented, and/or the applicable law.

With that in mind, we can understand what the appeal judge is saying, and answer your questions. The appeal judge is saying, that:

  1. Based on what was presented on the day, the other judge did reach a reasonable decision. (1)(3).
  2. You've also tried (via your new barrister) to re-argue the case in front of the appeal judge, and proposed new arguments why you should have won on the day. (2)
  3. They were good arguments. If you'd made those arguments on the day, when the trial case happened, then quite possibly the judge would have reached a different decision on the day. But you (via your original barrister) didn't argue them on the day, and you can't rewrite that. You had your day in court and you evidently have now found you could have used it better. But that day can't be rerun after it's over. Those new arguments, just aren't relevant any more, because this hearing is about reviewing the judges decision process and based on what happened on that day the judge didn't make any obvious error.(3)(4)
  4. Translating from legalspeak: "I sympathise but I'm sorry, you can't rerun your case, just because your team didn't play its cards to best effect on that day. Provided the judge did their job without obvious error on that day, after hearing the evidence they did,there's nothing to correct or change, in an appeal of the decision making process, so it stands, we don't have anything that can be successfully appealed." (4)

With that, we can answer your questions

Who can ask the judge to interpret this judgement

You can ask your solicitor or barrister, or anyone you like, to interpret the appeal ruling. But I've done so here, and that's roughly what they'd say. In legal terms its clear what it is saying. Nobody will tell you much differently, so you can save your money.

Who is responsible? The first barrister or the defendant? If the first barrister, can the defendant claim for barrister professional negligence?

Ultimately the client chose the team. It was their case, and they decided whose hands to use to present it, as well as other decisions on the way.

A solicitor or barrister can be sued for negligence,if the client feels they didn't execute that agreed work, to a proper professional standard. The claim would be that they so mishandled your case and its presentation, based on what they knew, that no competent solicitor/barrister could reasonably have acted that poorly, unprofessionally, or ignorantly.

So yes you can.

I should warn you that this is a very demanding goal to prove. The fact they made professional decisions how to handle it, or that some arguments arose afterwards and weren't made originally, or weren't made forcefully enough to convince, is not enough to automatically prove negligence. People (or their legal advisers) often think of arguments later, when its too late, and your case may be one of those, and that's not automatically negligent.

Comments and words of advice

There is a huge difference between "They could have argued it better,or presented some extra and key arguments" and "They prepared and/or argued it plain incompetently". An analogy might be, that just because a builder didn't build an award winning top notch house, with all features, doesn't mean they built a distinctly bad or unsafe one. You chose who to represent you, and, like your opponents, like a cup final team manager, you live or die, on the day of the original trial hearing, by the choice you made, and how your chosen team play when it counts. Sorry if that's harsh and feels totally unfair, but that's how it works.

You sound like you're at a point where you may be inclined to throw a lot of good money after bad.

If you did decide to go down this road, then there are 3 pieces of advice I'd give.

  1. The best person to ask, will be your appeal barrister. Ask them this one question - do they feel the original case was handled or argued negligently?
  2. Accept their answer. If they say no, or probably not, or doubtful, then walk away. You will almost certainly not have a good enough argument to convince another judge that the high standard for negligence was met.
  3. Only if they give an unqualified "yes" or "very likely", consider possibly continuing.

If that happens - and most times it won't be the answer they give - the followup questions would be "is it a good enough case that you'd recommend claiming?", and then, "How would I proceed, and what's involved?"

(And, if they don't themselves offer, ask them if they'd take the case: they are already familiar with it, and they have already shown they can identify and present the new arguments to the appeal court well enough that the appeal court judges agree that it may have have made a difference if it had been presented at the original trial case).


The operative part of the judgement is "This appeal is dismissed."

Everything else is mere window dressing.

It is simple and unambiguous and is interpreted only by the people trying to carry out the affirmed judgment, whatever that may have been. A barrister who failed to correctly interpret that ruling and other rulings like it would quickly find himself or herself stripped of membership in the profession.


The courts have evolved a position where Barristers are almost uniquely resistant to claims of negligence. This, not by special treatment of barristers, but by gradual erosion of the position of other professionals. It used to be the position of the courts that (for example) doctors made judgements on the evidence in front of them, and that making a wrong judgement was not evidence of negligence. This is still the case for barristers: barristers are understood to make judgements, and being wrong is not evidence of negligence. A finding of negligence will require much more than that.

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