THE JUDGE MUST GIVE REASONS FOR ADVERSE FINDINGS (PLUS A QUICK LOOK AT ALLEGED BIAS)
The previous post looked at a Court of Appeal decision where a judgment at first instance was set aside because of a failure to give reasons for disbelieving solicitors. Similar principles applied in the case of The Gulf Agencies Limited -v- Abdul Salam Seid Ahmed  EWCA Civ 44. There are also some interesting observations on “apparent bias”
“…the judge rejected the landlord’s case in a way which carried the implication that he disbelieved the landlord but without a clear finding to that effect and without clearly setting out the findings and grounds to justify this conclusion. That was a fundamentally wrong way of deciding the case. Any party in the position of the landlord was entitled to know why his case had been rejected and why, by implication, he had been disbelieved, all the more so if he was a solicitor.”
“It appears from a number of remarks made by the judge, some of which are quoted above, that he had formed a jaundiced view generally of parties and witnesses at the Central London County Court. It hardly needs saying that generalised views of that type provide no basis for approaching the evidence of the parties or witnesses in any particular case with scepticism from the outset. Judges should form their views of the evidence in a case on the basis of the evidence and the circumstances of that case.”
- A judge deciding the issue of whether a party is to be believed or not must give clear reasons for that decision.
- “Implicit” reasons for not accept evidence are not sufficient
- Although some of the observations made by the judge were unfortunate there were no grounds for a finding of bias. The appeal was allowed on the grounds of a failure to address and decide the central issue.
- The claimant tenant brought proceedings seeking the grant of a new tenancy.
- The defendant landlord opposed the application on the grounds that he wanted to move his own solicitors’ practice into the premises.
- This issue was heard at trial and the judge found against the defendant.
THE DECISION TO BE MADE: WAS THE DEFENDANT TELLING THE TRUTH?
There can be no doubt that the issue for the judge, as put by both parties, was whether the landlord was truthful in his evidence that he intended to occupy the premises for the purposes of his businesses. Mr Holmes-Milner, appearing in this court and below for the tenant, concluded his closing speech by saying:
“Your Honour has to decide, does he want to go in to run a business or does he want to recover possession with a view either just to kick out this tenant who he does not like or to get a foot in the door with a view to a sale?”
“But, your Honour, at the end of the day you have to decide whether my client has a genuine intention or whether he is lying.”
Mr Holland had earlier summarised his understanding of the tenant’s case in these terms:
“But the point is this, my learned friend has to come up with some motivation as to why my client might lie. He says my client is a liar. Let’s not beat about bush here: he is a liar who concocts documents or, if he does not do that, conspires with others to get them to concoct documents deliberately to paint a false picture to this court.”
Mr Holland made the same point on a number of occasions in his closing speech, in each case without any correction or qualification from Mr Holmes-Milner.
Mr Holland submits that, notwithstanding these very clear statements, the judge never grappled with the issue whether the landlord was telling the truth or came to any conclusion on it. Instead, the judge rejected the landlord’s case in a way which carried the implication that he disbelieved the landlord but without a clear finding to that effect and without clearly setting out the findings and grounds to justify this conclusion. That was a fundamentally wrong way of deciding the case. Any party in the position of the landlord was entitled to know why his case had been rejected and why, by implication, he had been disbelieved, all the more so if he was a solicitor.
The judge stated he “could not find a firm and settled intention”, “… I think I have made it plain in giving my reasons that the evidence simply is not there upon which one can say that there is an intention as opposed to, perhaps, something less than an intention to occupy the premises.”
The difficulty with this conclusion is that it does not address the central issue as presented by both parties to the judge. The issue was not whether the landlord had formed some wish, short of a firm intention, to occupy the premises for the purposes of his solicitors’ practice and minicab business. The issue was, as counsel for the tenant had put it to the judge in closing, whether the landlord genuinely wanted possession in order to run his business in the premises or whether he was seeking to recover possession so as either to remove the tenant whom he did not like or to sell the property. In view of the very clear evidence of the landlord, the task for the judge was to decide whether he believed the landlord and, particularly if he did not believe him, to state clearly his reasons: see Zarvos v Pradhan  EWCA Civ 208;  2 P&CR 9 at . An important part of the relevant evidence related to the authenticity of the different versions of the lease of 60 Bell Street and the licence agreement for 220 Edgware Road and whether the landlord had been involved in the production of false versions of those documents. Apart from finding that the guarantee attached to one of the versions of the licence agreement had been manufactured, the judge made no findings on the authenticity of the documents and no findings on whether the landlord had been knowingly party to the production of false documents.
The result is that while, as both counsel agree, a fair reading of the judgment suggests that the judge implicitly did not believe the landlord, there is no express finding to that effect and no clear reasons for that conclusion. This is an unacceptable way of deciding the case, from the point of view of both parties. It is a very serious concern for the landlord that he appears to have been disbelieved without any clear finding or any clear statement of the grounds for that finding. It is also a matter of concern to the tenant. A clear finding of dishonesty would have given the tenant strong grounds for applying for its costs to be assessed on the indemnity basis.
At the beginning of the trial the judge told that parties that he had conducted an internet search and that the defendant did not, in fact, appear on the Law Society register. It transpired that the judge had searched against an incorrect name.
“It is also a similar matter with the witnesses. It happens all the time at this court; I have never known anywhere like it. Witness statements get included and it is quite clear that as far as Mr El Nidani is concerned he is, it would seem from the documentation we have seen, very ill in hospital even as I am delivering judgment and it may be that he has a history of illness in that way, certainly recently. But there are ways and means – and as a solicitor the defendant should know this – of evidence being given without the need of a witness to come to court. There are video links and the judge will go to a place to take the evidence. Many of us have been to hospitals or something of that nature so that evidence can be given.”
These were odd observations for the judge to make, given that he had accepted written evidence from the Royal Free Hospital that Mr El Nidani had been admitted to hospital at 4.05am on Friday 8 November 2013, with a suspected heart attack, and was, as the judge himself said, “very ill”.
“So far as Mr Hilli is concerned, he too may be an important witness but he is allegedly absent in Iran and he has had a motor accident. I am afraid, and I am entitled to be slightly questioning, I have heard that a witness or a claimant or a defendant is beyond the seas and has had a road accident so many times it is very difficult to take it at face value without more. But be that as it may, efforts can be made to have witnesses give evidence. At any rate, we try the case on the evidence that we have and that is what I propose to do. I really cannot give a great deal of weight to the statements of these witnesses because they have not been called to support their assertions.”
It appears from a number of remarks made by the judge, some of which are quoted above, that he had formed a jaundiced view generally of parties and witnesses at the Central London County Court. It hardly needs saying that generalised views of that type provide no basis for approaching the evidence of the parties or witnesses in any particular case with scepticism from the outset. Judges should form their views of the evidence in a case on the basis of the evidence and the circumstances of that case. It follows that the explanation given by the judge for doubting whether the landlord was in fact a solicitor, namely his experience in other cases, did not provide a legitimate ground for his doubts. In a case which clearly involved the credibility of the landlord, his online researches before the start of the trial unfortunately but inevitably gave the impression that he was looking for evidence adverse to the landlord. This impression was all the stronger as the tenant had raised no issue or doubts on this subject and it was aggravated by the judge’s unwarranted references to his experience of prosecuting swindlers and to impersonation as a solicitor being a criminal offence. Having, for whatever reason, doubts on this matter, he should have raised it with counsel at the start of the trial in a neutral manner, explaining the grounds for his doubts, inviting the comments of counsel for both parties and, if necessary, requesting inquiries to be made. The way in which he in fact raised the matter suggested that he might well have formed an adverse view of the landlord and his credibility.
Fortunately, the matter was cleared up when a search of the Law Society website was made, using the landlord’s correct name. At that point, in the passage cited above, Mr Holland QC expressed the hope that “we’ll start with a clean slate”, to which the judge agreed. If the landlord or his counsel considered that, in view of the remarks previously made by the judge, there was evidence of apparent bias such that the judge should not continue to hear the case, an application should then have been made for the judge to recuse himself: Locabail (UK) Ltd v Bayfield Properties Ltd  QB 451 at .
It would remain open to the landlord to challenge the judgment on the basis of apparent bias, if the subsequent conduct of the case by the judge or the contents of his judgment displayed renewed evidence of apparent bias. Mr Holland has not been able to point to anything further in this respect, beyond paragraphs 21 and 22 of the judgment. In my judgment, they do not show any apparent bias against the landlord. The judge accepted that Mr El-Nidani was ill in hospital and, while it is true that the judge expressed some scepticism as regards the reason given for the absence of Mr Hilli, it is only fair to note that Mr Holland accepted before the judge that there was “a justified inclination of scepticism” (Day 3, page 43).
I am satisfied that neither the judgment nor the conduct of the case by the judge after the status of the landlord as a solicitor had been cleared up demonstrates any bias, or apparent bias, on the part of the judge. It may be that the judge failed to grapple directly with the issue of the credibility of the landlord because of the unfortunate way in which he had dealt with the landlord’s position as a solicitor and his acceptance that he had been wrong. But the judgment is set aside because of the judge’s failure to address and decide the central issue, not on grounds of alleged bias.”
- Overturning findings of facts on appeal: findings of absence of dishonesty overturned by the Privy Council.
- If findings of dishonesty are to be made then witnesses have to be heard
- Overturning findings of facts and “inferences” on appeal.
- Appealing on the judge’s findings of facts: a trial is not a rehearsal but “the first and last night of the show”.
- Appealing on the facts and witness credibility: the demeanour of the witness
- Pleading and proving allegations of fraud or dishonesty.
- Witness credibility, attendance notes and findings of fact.