Facing facts

A New Year has arrived, and indeed January is now half over. The pace of change is accelerating and we are rocketing towards spring. Time seems to get faster every year. Or perhaps more truly my perception of time is that it gets faster, as I am getting older. I comfort myself that there is still life in the old dog yet, and the credit hire work keeps coming. But it has changed in nature, as it has periodically changed over the last three decades. Thus at the moment, I seem to be doing more appeals, than trials.

Appeals can arise in many contexts. They may be interlocutory appeals, seeking to overturn a case management decision, or a refusal to grant relief from sanction. They may involve a question of law, as county court judges in busy county court lists, do sometimes get the law wrong. They may arise because one party or the other has decided to push their luck at trial, achieved a stunning result and is determined to resist an appeal. Often, they are appeals on what are fundamentally questions of fact.

In the hierarchy of difficulty, successfully appealling findings of fact, can be extremely difficult. This is because when a case is tried, the evidence may emerge in a rather different way to that anticipated, and it is open to the judge trying the case, indeed the nature of the exercise, to accept some parts of the evidence, and discount others, in order to draw conclusions and make findings, allowing the claim, or dismissing it as the case may be. This difficulty flows from the nature of the exercise that the judge is involved in, and the very high hurdles drawn by appellate caselaw, which limit the circumstances in which an appeal on questions of fact will succeed.

An appeal against a judge’s conclusion that a claimant has failed to mitigate her loss, or has mitigated her loss is a an appeal against a finding of fact. It be may be described as a secondary finding of fact, being a conclusion or evaulative judgment made after making primary findings of fact on the claimant’s financial resources, what they did after the accident, why they acted as they did, and what options were open to them or not, but it is still a finding of fact.

The case of Volpi v Volpi [2022] EWCA Civ 464 contains a useful summary of the principles which apply on appeals against decisions on findings of fact:

2. The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:

i) An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal 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 appeal 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.

iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable.

vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.

3. If authority for all these propositions is needed, it may be found in Piglowska v Piglowski [1999] 1 WLR 1360; McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477; Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29; Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600; Elliston v Glencore Services (UK) Ltd [2016] EWCA Civ 407; JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176, [2019] BCC 96; Staechelin v ACLBDD Holdings Ltd [2019]  [2019] 3 All ER 429 and Perry v Raleys Solicitors [2019] UKSC 5, [2020] AC 352.

4. Similar caution applies to appeals against a trial judge’s evaluation of expert evidence: Byers v Saudi National Bank [2022] EWCA Civ 43, [2022] 4 WLR 22. It is also pertinent to recall that where facts are disputed it is for the judge, not the expert, to decide those facts. Even where expert evidence is uncontroverted, a trial judge is not bound to accept it: see, most recently, Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442, [2022] 1 WLR 973 (although the court was divided over whether it was necessary to cross-examine an expert before challenging their evidence). In a handwriting case, for example, where the issue is whether a party signed a document a judge may prefer the evidence of a witness to the opinion of a handwriting expert based on stylistic comparisons: Kingley Developments Ltd v Brudenell [2016] EWCA Civ 980.

5. Tribunals are free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense. Whether any positive significance should be attached to the fact that a person has not given evidence, or to the lack of contemporaneous documentation, depends entirely on the context and particular circumstances: Royal Mail Group Ltd v Efobi [2021] UKSC 33, [2021] 1 WLR 3863.

This remains a useful summary of principle although two caveats should be applied. The first is that the TUI (UK) Ltd v Griffiths case has proceeded to the Supreme Court, and the decision of the Court of Appeal set aside: the second is that there may be a distinction in appeals of facts between primary and secondary findings: certainly there is support for that in the older caselaw. It may be however, that the law has moved on. Other categories of appeals, such as appeals against the exercise of a discretion have their own principles and criteria, but I shall look at those in another post, later in the year.

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