PROVING THINGS 141: CREDIBILITY WAS IMPORTANT IN CLAIM FOR DAMAGES AGAINST SOLICITORS: SUPREME COURT RESTORES DECISION OF TRIAL JUDGE

In Perry v Raleys Solicitors [2019] UKSC 5 the Supreme Court restored the decision of the trial judge in relation to damages. One of the key issues was whether the Court of Appeal was correct to overturn the trial judge’s factual findings as to credibility.

THE CASE

The claimant, a retired miner,  had made a claim under the DTI VWF scheme.  The defendant solicitors acted for the claimant in that action.  He later sued the solicitors arguing that they failed to make a claim for certain heads of damages , the “claim for services”, that would have been recoverable.  The trial judge found that the claimant had failed to establish causation and that he would have been entitled to the head of damages that he alleged the defendant had failed to claim on his behalf.  The Court of Appeal overturned that decision and awarded damages.  In part this was due to the Court of Appeal’s decision to overturn findings of fact by the trial judge.   The defendant appealed to the Supreme Court.  The Supreme Court allowed the appeal and restored the decision.

THE JUDGMENT OF THE SUPREME COURT

The Supreme Court was critical of the Court of Appeal’s approach to the assessment of the facts.  It held that this was not a case in which it was appropriate for the Court to interfere with the findings of fact made by the trial judge, particularly in relation to witness credibility.
 56.              Linked to this criticism was the conclusion, at para 46 of the judgment of Gloster LJ, that “the judge placed far too much weigh on the detail of the inadequate answers which were given by the appellant in this respect …”. But again, the weight to be given to evidential material in forming a conclusion whether Mr Perry’s evidence lacked all credibility (as the judge found) was a matter for the trial judge.
  1.  The second and main criticism by the Court of Appeal was that the judge had disregarded, without giving proper reasons, the evidence, broadly supportive of Mr Perry’s case, from Professor Kester and from the single joint expert Mr Tennant, in particular because the latter was not called to be cross-examined. Professor Kester’s task, under the Scheme, was to advise whether, and with what degree of severity, Mr Perry suffered from VWF. He noted that Mr Perry reported a loss of manual dexterity and clumsiness of an intermittent nature, but his detailed examination of Mr Perry was directed to the presence or absence of the VWF in his hands rather than to their grip or dexterity.
  2.  By contrast, Mr Tennant’s opinion was directed towards Mr Perry’s ability to carry out the relevant domestic tasks unaided. Again however, much of his reasoning was based upon information provided to him by Mr Perry during interview, in particular in relation to each of the six relevant tasks, although Mr Tennant appears to have carried out a grip strength test and some simple tests of manual dexterity.
  3.  The judge did, at paras 116-118 and 122-123 of his judgment, remind himself of the opinions of Professor Kester and Mr Tennant, of their findings as to the severity of Mr Perry’s VWF, of the presumption thereby arising in favour of a Services Award, and accepted that Mr Perry suffered from VWF “to a high degree”. At para 118, he said:
“I acknowledge that the staging of two doctors supports the view that he has a significant loss of function, but I repeat that the question is whether the claimant has established that in reality any loss of function manifested itself in an inability to carry out the tasks.”
This was what, in the passage already quoted above, the judge described as “a question of credibility”.
  1.  The trial judge was not merely entitled but obliged to weigh in the evidential balance his perception that Mr Perry was lying about his ability to perform, unaided, the relevant tasks against the opinion, in particular of Mr Tennant, that he suffered from shortcomings in manual dexterity which made it likely that he suffered from such a disability. Corroborative expert evidence not infrequently transforms testimony which on its own appears most unlikely into something credible. The judge’s conclusion that Mr Tennant’s opinion did not prevail over Mr Perry’s thoroughgoing lack of credibility cannot be described as either lacking in reasoning or trespassing beyond the range of reasonable conclusions available to a trial judge. While it might have been better if Mr Tennant had been called for cross-examination, the judge was not obliged to prefer the expert’s opinion, based as it was to a significant extent upon what Mr Perry had told him, to that which the judge was entitled to form, on the basis of the evidence as a whole, about whether Mr Perry was telling the truth about his supposed disability. In the end, the Court of Appeal’s criticism amounted to a supposed failure to give sufficient weight to the medical evidence: see per Gloster LJ at para 52. But questions as to the weight of competing evidence are pre-eminently a matter for the trial judge.
  2.  The next criticism was that the judge had misunderstood, or failed to apply, a principle fundamental to the Scheme, namely that a claimant did not have to be disabled entirely from carrying out a task in order to be entitled to a Services Award: see per Gloster LJ at para 54. She said that “the impression given by the judge was that he wrongly considered that unless Mr Perry could not carry out any aspects of a task without assistance, he was not entitled to claim in respect of that task”.
  3.  No such error appears from perusal of the judge’s careful judgment. In particular, at para 132, he acknowledged that “inability or reduced ability to carry out the services tasks” would be sufficient to support a claim to a Services Award.
  4.  The final criticism made by the Court of Appeal was that the judge “could not rationally have reached the conclusion that Mr Perry, his wife and two sons had all given false evidence”: see per Gloster LJ at para 55. It is a very strong thing for an appellate court to say, from a review of the paper records of a trial , that the trial judge was irrational in concluding that witnesses were not telling the truth, all the more so when the trial judge gives detailed reasons for that conclusion in a lengthy reserved judgment, and those reasons do not disclose any failure by him to consider relevant materials, or any disabling failure properly to understand them. The credibility (including honesty) of oral testimony is, of all things, a matter for the trial judge.
  5.  It is unnecessary to address in detail the reasons given by Gloster LJ for that finding of irrationality against the judge. It is sufficient to say that, while they constitute persuasive and forcefully expressed views about why she and her colleagues in the Court of Appeal, faced with the same materials, would have come to a different conclusion, they do not, separately or in conjunction, support a conclusion of irrationality as the only explanation for the judge’s contrary view. As the judge said, the question whether Mr Perry needed assistance in the performance of the relevant tasks following his retirement from mining was pre-eminently a matter to be proved, or not proved, by his oral evidence, with such support as he could muster from the oral evidence of his wife and two sons. It was, as the judge put it, a question of credibility. While there undoubtedly are cases where surviving documents point so clearly to the correct answer to issues of fact that the oral testimony of relevant witnesses is of subordinate importance, this is not one of them. Furthermore the surviving documents were, as was demonstrated during cross examination, generally hostile to Mr Perry’s case.
  6.  Mr Watt-Pringle sought to support the Court of Appeal’s criticisms of the judge’s findings with specific submissions about aspects of the detail. They did not, separately or together, amount to a case sufficient to support either a conclusion that there was no evidence to support the judge’s adverse findings about credibility or a conclusion that no reasonable judge could have decided as he did. In particular Mr Watt-Pringle pointed to the relative brevity of the cross-examination of Mr Perry’s wife and two sons, being, he submitted, insufficient to justify the conclusion that any of them was lying. But it is impossible to tell, without having been present at the trial, whether a short or a long cross-examination of a witness was necessary in order to undermine his or her credibility.
  7.  Mr Watt-Pringle also pointed to the fact that the central thrust of Raleys’ case at trial was not so much that Mr Perry suffered from no disability in performing the relevant tasks unaided, (although that was part of Raleys’ case) but rather that his back problem was the only significant cause of such disability as in fact affected him. He pointed to the fact that, in the concluding part of his judgment, the judge rejected Raleys’ case that Mr Perry’s back problems were of that degree of significance, preferring in that respect the evidence to the contrary of Mr Tennant. But he did so expressly on the conditional basis that he might be wrong in his primary conclusion that Mr Perry was lying about having any relevant inability to perform those tasks unaided: see para 137 of his judgment.
  8.  In conclusion therefore, none of the grounds upon which the Court of Appeal considered that this was one of those rare cases where it was appropriate to reverse the trial judge’s findings on issues of fact is established, to the requisite high degree. Accordingly, this appeal should be allowed, and the judge’s order restored.