Parties' cross-claims in negligence in respect of road traffic accident - no independent witnesses and judge finding neither party to be disbelieved - judge required to determine issue of liability by analysing evidence

Cooper v Floor Cleaning Machines Ltd and another: CA (Lords Justice Ward, Scott-Baker and Thomas): 20 October 2003

The claimant and the defendant motorists were involved in a collision.

There were no other witnesses to the accident.

The claimant sought damages from the defendant.

The defendant denied liability and brought a counterclaim against the claimant.

The judge, finding neither party was to be disbelieved, said that in the incredible circumstances, unless he were to toss a coin, the only decision open to him was to dismiss both claim and counterclaim.

The defendants appealed.

Daniel Tobin (instructed by Judge & Priestley, Bromley) for the claimant; Richard Menzies (instructed by KSB Law) for the defendants.

Held, allowing the appeal, that the judge had erred in failing to inform or consult counsel as to his decision prior to giving judgment; that, save in exceptional circumstances, it was incumbent on a judge deciding issues of liability to analyse the evidence and decide which party's case was the more likely to be correct and to reach a conclusion accordingly; that had the judge embarked on that exercise he would have noticed various features favouring the defendants; and that, since the judge had found the primary facts, the conclusion had to be, as a matter of probability, that the defendants' account of what had happened was more likely than that of the claimant's so as to entitle his counterclaim to succeed.