Sound and fury

An interesting case from a few months ago is the decision in the Court of Appeal in the case of Hamid v Khalid and Co-operative Insurance [2017] EWCA Civ 201. The case can be regarded on one level as a lineal descendant of Armstrong v First York Limited [2005] EWAC Civ 277 where Judge Stewart QC (as he then was) memorably preferred the lay witness evidence of the claimant to unimpeached expert evidence to hold that a genuine claim was made out.

In the case of Hamid is interesting for the fact that the appeal failed despite a valiant attempt by defence counsel to persuade the court that the Recorder who tried the case at first instance was wrong in her evaluation of the evidence by citing an alleged 30 instances of major points of significance in the evidence which it was contended the judge had either failed to deal with or where her conclusions were against the weight of the evidence.

The appeal failed against a backdrop of the Court of Appeal reminding itself of the very limited scope that an appellate court has to interfere with findings of fact: the judgment of Henderson LJ is a useful aide memoire of the surfeit of relatively recent appellate statements emphasising what a broad brush a first instance judge has, when it comes to painting findings from the evidential palette.

The Court of Appeal noted:

26. The principles which govern the review of findings of fact by an appellate court were authoritatively re-stated by the Supreme Court in McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477, at [1] to [6], in the judgment of Lord Reed with which the other members of the court agreed. These principles were then endorsed, and further developed, by the Supreme Court in Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600, at [58] to [68], where the only reasoned judgment was again given by Lord Reed. The point which emerges with particular clarity from these passages is that an appellate court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that the trial judge was “plainly wrong”. The meaning of that phrase was elucidated in Henderson at [62], where Lord Reed said:

“There is a risk that it may be misunderstood. The adverb “plainly” does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”

27. Because Mr McGrath relies on it, I also draw attention to what Lord Reed said in Henderson at [67]:

“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

28. It is also pertinent to note the guidance given by this court in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114] to [115] (per Lewison LJ), and (very recently) in Grizzly Business Ltd v Stena Drilling Ltd and Another [2017] EWCA Civ 94 at [39] to [40]. This guidance emphasises that appellate courts should not interfere with findings of fact by trial judges unless compelled to do so. The reasons for this approach include the following, which Lewison LJ identified in the Fage case at [114]:

“(i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.

(ii) The trial is not a dress rehearsal. It is the first and last night of the show.

(iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.

(iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

(v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

(vi) Thus even it were possible to duplicate the role of the trial judge, it cannot in practice be done.”

I respectfully agree with all of those observations.

The Court also emphasised how exceptional it would be, for a party, having been acquitted of allegations of fraud at trial, to be found to be fraudster on appeal:

29. Authority for this proposition may be found in Akerhielm v De Mare [1959] AC 789 (PC), where Lord Jenkins, delivering the judgment of the Privy Council, said at 806:

“Suffice it to say that their Lordships are satisfied that this is not one of those exceptional cases in which an appellate court is justified in reversing the decision of a judge at first instance when the decision under review is founded upon the judge’s opinion of the credibility of a witness formed after seeing and hearing him give his evidence … Their Lordships can hardly imagine a case in which the credibility of a witness could be more vital than a case like the present where the claim is based on deceit, and the witness in question is one of the defendants charged with deceit. Their Lordships would add that they accept, and would apply in the present case, the principle that where a defendant has been acquitted of fraud in a court of first instance the decision in his favour should not be displaced on appeal except on the clearest grounds (see Glasier v Rolls (1889) 42 Ch D 436, 457).”

The judgment will be useful when considering the test on appeals from all levels, particularly now that even appeals on Multi-track cases in the County Court, will fall to be dealt with by a High Court judge.

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