FINDINGS OF FACT AND EXPERT EVIDENCE: A JUDGE MAKES THE FINDINGS FIRST AND CONSIDERS THE EXPERT EVIDENCE NEXT
In Graham & Anor v Campfield & Anor  EWHC 2746 (Ch) Mr Justice Birss made some important observations about findings of fact and expert evidence. It shows the importance of primary findings of fact and the limitations of expert evidence. The appropriate approach is for the judge to make findings of primary fact and then consider the expert evidence. The alternative approach contended for by the defendant/appellant was wrong in principle.
“The theories should be fitted to the primary facts, not the primary facts fitted to the theory.”
The claimants brought an action claiming nuisance and negligence by the defendant which caused flooding to the claimants’ land and businesses. Each party had called expert evidence. The experts had different views about the history of the flooding. The judge found in favour of the claimants, the defendant appealed.
THE DEFENDANT’S ARGUMENTS IN RELATION TO THE EXPERT EVIDENCE
One of the defendant’s argument was that the judge should have considered the expert evidence first before considering issues in relation to the cause of the flooding.
“A major part of the defendants’ case is the submission that the judge ought to have grappled with the experts’ rival mechanistic theories first, made findings about that, and then applied them to the rest of the case. This submission has the merit on appeal of being a point of principle about the manner in which the judge approached the task as a whole. If it is a good point then it would undermine the whole approach the judge took. If it is a good point then the judge’s short passage in which he prefers Mr Haiste’s opinions to those of Mr Jenkin would not be adequate.
In my judgment the defendants’ submission is wrong in principle. The judge approached the matter by deciding what the primary facts actually were and then considering how the experts’ opinions stood against those findings of primary fact. He found that there had been less significant flooding up to 2009, serious flooding after the diversion and then the work in 2015 had fixed the problem. Against those primary facts he could test the experts’ rival theories. Mr Haiste’s opinions predicted that those would be the facts whereas Mr Jenkin’s opinions predicted different facts. His volume theory predicted that there would be no significant change over time. That is why the judge was able to prefer Mr Haiste’s evidence in a brief paragraph 45. That is what the judge meant when he said “the findings of fact I have made better fit with Mr Haiste’s view“.
Not only was the judge entitled to take this approach, in my judgment it was a preferable approach to take as a matter of principle. When there is direct evidence about what the degree of flooding actually was at the material times, to start with the rival theories and then use a preference for one theory over another to resolve a dispute about the primary facts risked coming to the wrong conclusion. The theories should be fitted to the primary facts, not the primary facts fitted to the theory.
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