How Judges in England Decide Civil Litigation Cases: Insights from Blower v GH Canfields

The English legal system emphasises open justice, meaning the public can generally access court documents and attend hearings. This article explores how judges in England and Wales arrive at their decisions in civil litigation cases, using the real-life professional negligence case of Sandra Blower v GH Canfields LLP [2024] EWHC 2763 (Ch) as a practical illustration.

This failed professional negligence case was pursued under a CFA by McFaddens Law LLP’s Howard Epstein who is not noted as a professional negligence expert on his own law firm’s profile. The importance of using specialist professional negligence litigation solicitors and barristers cannot be understated especially since the insurance-backed opponents will invariably deploy such specialist legal advisers.

Case: Sandra Blower v GH Canfields LLP

This case involved a negligence claim against London law firm GH Canfields LLP by Sandra Blower, who alleged the firm provided inadequate advice regarding a settlement in her husband’s bankruptcy proceedings. Her husband, John Blower, faced claims exceeding £2 million from the trustee in bankruptcy.

During a lengthy mediation session, Mr. Blower, alongside solicitor Robert Whitehouse, negotiated a settlement of £1.5 million. However, six days later, Mr. Blower sought to withdraw from the agreement.

The judge, HHJ Paul Matthews, ultimately ruled that Canfields had not acted negligently. He emphasised that Mr. Blower, a seasoned businessman, had his family’s trust to secure the best possible outcome, and the family did not set any limits or “red lines” for the settlement. Additionally, Mr. Whitehouse consulted with barrister Jonathan Crystal, who, after reviewing the proposed terms, found no cause for concern, stating it would likely save the family considerable trouble and expense.

The judge noted the inherent weaknesses in the family’s case, including the lack of documentary support and the potential harm Mr. Blower’s testimony could cause. Even if negligence had been established, the claimant failed to demonstrate that it led to any specific loss i.e. causation. The judge also highlighted the significance of the claimant’s failure to call Mr. Blower as a witness, allowing him to draw an adverse inference from his absence.

The Blower v GH Canfields LLP case illustrates the principles judges consider when making decisions, such as evaluating evidence, applying relevant legal precedents, and considering the actions and arguments presented by both sides.

Judicial Insights from Blower v GH Canfields LLP

This article explores how judges in England and Wales decide civil litigation cases, using the Sandra Blower v GH Canfields LLP case as a practical example.

How Judges Decide Cases

English judges decide cases based on the arguments and evidence presented by the parties involved. England has an adversarial system of civil justice and therefore Judges do not conduct their own investigations, but may ask for clarification on certain points. This differs from inquisitorial systems of justice that exist in most civil code jurisdictions. While judges are bound to apply the law as created by Parliament and uphold past case precedent set by higher courts, they also use their judgment to apply relevant law to the facts of each case.

The process involves:

• Applying the law: Judges ensure the laws created by Parliament are followed, while considering precedents set by higher courts in similar cases.
• Finding the facts: Judges hear evidence and legal arguments to determine the facts of the case.
• Providing a judgment: Based on the facts and law, judges explain their decision and the resulting orders in a reasoned judgment.

Throughout the process, judges play an active role, ensuring fairness and providing opportunities for all parties to present their cases. They carefully consider the evidence presented, including witness testimonies and documents.

HHJ Paul Matthews on ‘How Judges Decide Cases’:

The following is a direct quote from the judgment of HHJ Paul Matthews in Blower v Canfields followed by our analysis and further explanation.

“4. For the benefit of the lay parties in this case I will say something about how English judges decide civil cases like this one. I borrow the following words largely from other judgments of mine in which I have made similar comments. First of all, judges do not possess supernatural powers that enable them to divine when someone is
mistaken, or not telling the truth. Instead, they take note of the witnesses giving live evidence before them, look carefully at all the material presented (witness statements and all the other documents), listen to the arguments made to them, and then make up their minds. But there are a number of important procedural rules which govern their decision-making, some of which I shall briefly mention here, because non-lawyer readers of this judgment may not be aware of them.

5. The first is the question of the burden of proof. Where there is an issue in dispute between the parties in a civil case (like this one), one party or the other will bear the burden of proving it. In general, the person who asserts something bears the burden of proving it. So, in the present case the claimant must prove that the advice given to the
claimant and to Kelly was negligent. Further on in this judgment, I deal with an argument that the defendant bears an evidential burden in relation to causation of loss.

6. The importance of the burden of proof is that, if the person who bears that burden satisfies the court, after considering the material that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then for those purposes it did not happen. The decision is binary. Either something happened, or it did not, and there is no room for ‘maybe’. That may mean that, in some aspects of the case, the result depends on who has the burden of proof.

Standard of proof

7. Secondly, the standard of proof in a civil case is very different from that in a criminal case. In a civil case like this, it is merely the balance of probabilities. This means that, if the judge considers that a thing is more likely to have happened than not, then for the purposes of the decision it did happen. If on the other hand the judge considers that the likelihood of a thing’s having happened does not exceed 50%, then for the purposes of the decision it did not happen. It is not necessary for the court to go further than this. There is certainly no need for any scientific certainty, such as (say) medical or scientific experts might be used to. However, the more serious the allegation, the more cogent must be the evidence needed to persuade the court that a thing is more likely than not to have happened.

Role of judges

8. Thirdly, in our system, judges are not investigators. They do not go looking for evidence. Our system is not inquisitorial, but accusatorial. Judges decide cases on the basis of the material and arguments put before them by the parties. So, it is the responsibility of each party to find and put before the court the evidence and other material which each wishes to adduce, and formulate their legal arguments, in order to
convince the judge to find in that party’s favour. There are a few limited exceptions to this, but I need not deal with those here.

The fallibility of memory

9. Fourthly, more is understood today than previously about the fallibility of memory. In commercial cases, at least, where there are many documents available, and witnesses give evidence as to what happened based on their memories, which may be faulty, civil judges nowadays often prefer to rely on the documents in the case, as being more objective: see Gestmin SGPS SPA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [22], restated recently in Kinled Investments Ltd v Zopa Group Ltd [2022] EWHC 1194 (Comm), [131]-[134]. As the judge said in that case, “a trial judge should test a witness’s assertions against the contemporaneous documents and probabilities and, when weighing all the evidence, should give real weight to those documents and probabilities”. In the present case, there are many documents available to the court. This is important in particular where, as here, the relevant facts occurred some years ago, one important participant in the events (John Blower) is not available to give evidence, and the memories of the witnesses that are available have necessarily been dimmed by the passage of time.

10. In deciding the facts of this case, I have therefore had regard to the contents of the documents in the case. In addition to this, and as usual, in the present case I have heard witnesses (who made witness statements in advance) give oral evidence while they were subject to cross-examination and re-examination. This process enables the
court to reach a decision on questions such as who is telling the truth, who is trying to tell the truth but is mistaken, and (in an appropriate case) who is deliberately not telling the truth. I will therefore give appropriate weight to both the documentary evidence and the witness evidence, both oral and written, bearing in mind both the fallibility of memory and the (relative) objectivity of the documentary evidence
available to me.

Reasons for judgment

11. Fifthly, a court must give reasons for its decisions. That is what I am doing now. But judges are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered. They deal with the points which matter most. Moreover, it must be borne in mind that specific findings of fact by a judge are inherently an incomplete statement of the impression which was made upon that judge by the primary evidence. Expressed findings are always surrounded by a penumbra of imprecision which may still play an important part in the judge’s overall evaluation. Put shortly, judgments do not explain all aspects of a judge’s reasoning, although they
should express the main points, and enable the parties to see how and why the judge reached the decision given.

Failure to call witnesses

12. Lastly, there is the question whether the failure to call a witness has any effect on a party’s case. In Royal Mail Group Ltd v Efobi [2021] 1 WLR 3893, SC, this question arose. In his judgment, Lord Leggatt (with whom all the other members of the court agreed) said:

“41. The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of
ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that
the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”

The Sandra Blower v GH Canfields LLP Case

In this case, Sandra Blower accused London law firm GH Canfields LLP of negligence in their advice regarding a mediation settlement related to her husband John Blower’s bankruptcy.

Key details of the case:

• John Blower faced bankruptcy proceedings due to financial difficulties.
• The trustee in bankruptcy brought claims against Blower and his family involving assets worth £2 million.
• GH Canfields LLP represented the Blower family during a 12-hour mediation session.
• John Blower and solicitor Robert Whitehouse attended the mediation and agreed to a settlement of £1.5 million.
• Six days later, John Blower attempted to withdraw from the agreement, leading to the negligence claim.

Judge’s Findings and Reasoning:

• No Negligence in Settlement Advice: HHJ Paul Matthews found that the settlement terms were negotiated by John Blower, who had his family’s trust to secure the best possible outcome. The judge deemed Mr. Whitehouse’s advice to Mr. Blower to not proceed if unsure about raising the finances as not negligent.
• Family’s Trust and Authority: The judge highlighted that the Blower family entrusted John Blower to negotiate the settlement and did not impose any limits or “red lines” on the agreement. This impliedly authorized both Mr. Blower and Mr. Whitehouse to act on their behalf.
• Counsel’s Confirmation: Mr. Whitehouse had read out the proposed settlement terms to barrister Jonathan Crystal, who raised no objections, stating that it would save the family trouble and expense. This reinforced Mr. Whitehouse’s assessment of the situation.
• Weaknesses in the Family’s Case: The judge considered the weak pleadings, lack of documentation, and the risk of John Blower’s testimony as factors that would lead a reasonably competent solicitor to advise settlement.

Causation of Loss:

Even if negligence had been established, the claimant failed to demonstrate how the alleged negligence caused any loss. The judge stated that there was no “coherent case on causation of loss”. The claimant only pleaded that they wouldn’t have agreed to the settlement, but the judge believed that they would not have defied John Blower and rejected the negotiated terms, even if advised differently.

Why the Court Found in Favour of GH Canfields LLP

The court found in favour of GH Canfields LLP because the claimant failed to demonstrate that the defendant’s actions caused her any loss. Even if the defendant had been negligent, the judge stated that “as things stood on the pleadings, there was ‘no coherent case on causation of loss'”.

The judge, HHJ Paul Matthews, stated that the claimant’s case “leaves open the question as to what would have happened next” if the defendant had acted differently. Specifically, the claimant did not demonstrate whether she would have settled on more favourable terms or chosen to go to trial, and what the outcome of a trial might have been. The claimant also did not plead “loss of a chance,” which is a legal concept that could have potentially helped her to prove causation. Loss of a chance is relevant when a professional’s negligence results in the loss of a valuable opportunity or claim. For example, if a solicitor fails to advise a client about a claim they could make, the client may have suffered a loss of chance to recover damages.

The judge also noted several factors that weakened the family’s case and made settlement a more sensible option:

• The family had entrusted Mr. Blower to handle the negotiations. They did not provide him with any specific instructions or “red lines”, and they did not attend the mediation themselves456.
• The solicitor, Mr. Whitehouse, had consulted a barrister who had approved the terms of the settlement. The barrister believed the settlement would likely save the family “considerable trouble and expense”.
• The family’s case against the trustee in bankruptcy had several weaknesses, including a lack of documentary evidence. Furthermore, the judge stated that Mr. Blower would likely have been a poor witness if the case had gone to trial.

The judge’s decision was further supported by his decision to draw an adverse inference from the claimant’s failure to call Mr. Blower as a witness. The judge reasoned that since Mr. Blower was intimately involved in the relevant events, his absence from the trial suggested that his testimony would not have supported the claimant’s case. This underscores the importance of ensuring that all key witnesses are available to testify and be cross-examined during legal proceedings.

Conclusion and Key Takeaways:

The Blower v GH Canfields LLP case provides valuable insights into the workings of the English legal system. It demonstrates the importance of evidence, the role of legal precedent, and the weight judges place on the actions and arguments of both parties. The case also serves as a reminder that establishing causation of loss is a critical element of any successful negligence claim.

• Judges prioritise evidence: They rely heavily on the presented evidence and legal arguments when making decisions.
• Burden of Proof: The claimant carries the burden of proving their claims, including negligence and causation of loss.
• Importance of Witness Testimony: The absence of a key witness, such as John Blower in this case, can negatively impact a party’s case, especially when the judge is entitled to draw an adverse inference from their absence.

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