APPEALING FINDINGS OF FACT: THE UPHILL BATTLE

In Staechelin & Ors v ACLBDD Holdings Ltd & Ors [2019] EWCA Civ 817 Lord Justice Lewison set out  a “cut out and keep” guide for parties attempting to appeal findings of fact. A reminder of the uphill battle that appellants face in these circumstances.

 

“The judge must give reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. The judge’s duty is to give reasons for his decision. He need not give reasons for his reasons”

THE CASE

The claimants were successful at trial in obtaining judgment for $10 owed in commission. The defendants appealed that decision. Part of the argument on appeal involved a challenge to the trial judge’s findings of fact.

THE JUDGMENT ON APPEALING FINDINGS OF FACT

Lewison LJ set out the principles relating to appeals against findings of fact.
    1. If I may repeat something I have said before (Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5[2014] FSR 29 at [114]):
Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. …The reasons for this approach are many. They include
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 if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”
    1. Thus, it is a long settled principle, stated and restated in domestic and wider common law jurisprudence, that an appellate court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong: McGraddie v McGraddie [2013] UKSC 58[2013] 1 WLR 2477. What does “plainly wrong” mean? The Supreme Court explained in Henderson v Foxworth Investments Ltd [2014] UKSC 41[2014] 1 WLR 2600 at [62]:
“Given that the Extra Division correctly identified that an appellate court can interfere where it is satisfied that the trial judge has gone “plainly wrong,” and considered that that criterion was met in the present case, there may be some value in considering the meaning of that phrase. 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.”
    1. The mere fact that a trial judge has not expressly mentioned some piece of evidence does not lead to the conclusion that he overlooked it. That point, too, was made in Henderson at [48]:
“An appellate 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.”
    1. At [57] Lord Reed added:
“I would add that, in any event, 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, as I have explained, it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him, subject only to the requirement, as I shall shortly explain, that his findings be such as might reasonably be made. An appellate court could 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.” (Emphasis added)
    1. More recently, in Perry v Raleys Solicitors [2019] UKSC 5[2019] 2 WLR 636 the Supreme Court summarised the constraints on interfering with findings of fact at [52]:
“They may be summarised as requiring a conclusion either that there was no evidence to support a challenged finding of fact, or that the trial judge’s finding was one that no reasonable judge could have reached.”
    1. It cannot be said that in the present case there was no evidence on which the judge based his finding. Quite apart from anything else, there was Mr de Pury’s relevant evidence which he accepted. Can it be said that the judge’s finding was “one that no reasonable judge could have reached” or was “rationally insupportable”?
    2. The high hurdle imposed by the more recent case-law does not mean that a trial judge’s findings are inviolable. Mr Wardell QC, on behalf of the trustees, relied heavily on the decision of this court in Yaqoob v Royal Insurance (UK) Ltd [2006] EWCA Civ 885. The issue in that case was whether Mr Yaqoob was complicit in a fire such as to preclude him from making a claim on an insurance policy. It was common ground that:
i) The fire was started deliberately;
ii) The arsonist had keys to the property;
iii) The arsonist had keys to an intruder alarm; and
iv) The arsonist had tried to make it appear that access had been gained by a break-in.
    1. In addition, it was in dispute whether there was an abnormally low level of stock on the premises; but the trial judge did not resolve the conflict of evidence. The judge decided the case by reference to Mr Yaqoob’s credibility. The relevant part of his judgment was as follows:
“I have observed the demeanour of Mr Yaqoob closely over part of two days whilst he was rightly subjected to a searching cross-examination by Mr Lord [counsel for the insurers]. I detected no indication that he was being mendacious, nor was his evidence materially undermined. Placing that in the scales together with all the other evidence is sufficient to tip the balance in his favour.”
    1. What seems to have been the deciding factor for the trial judge was Mr Yaqoob’s demeanour in the witness box. At [36] Chadwick LJ held that the finding was flawed because it failed to deal with the real issues of credibility, namely (a) the conflict of evidence (b) the agreed profile of the arsonist and (c) the low level of stock on the premises. In short, the judge had not taken advantage of the benefits of seeing and hearing the witnesses. Chadwick LJ concluded at [38]:
“If, as I have sought to explain in the present case, the judge has not taken proper advantage of that opportunity — by failing to make findings of fact which were essential, by failing to address the question of credibility and by failing to analyse and given proper weight to the necessary conclusions to be drawn from the forensic evidence as to the profile of the perpetrator — then it cannot be enough for this court simply to say, “Oh well, the judge believed the witness and so must we”.”
  1. It is, to my mind, of critical importance that the trial judge based his evaluation on the demeanour of Mr Yaqoob in the witness box. For the reasons that Leggatt LJ explained in R (SS) (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391 a conclusion simply based on the demeanour of a witness is not built on a solid foundation.
  2. Mr Wardell also relied on a judge’s duty to give reasons for his decision. The principle is clear. The judge must give reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. The judge’s duty is to give reasons for his decision. He need not give reasons for his reasonsSecretary of State for Communities and Local Government v Allen [2016] EWCA Civ 767 at [19]. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted: English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605[2002] 1 WLR 2409Fage at [115]. Where there is a conflict of fact between witnesses, it may be enough for the judge to say that one witness was preferred to another because he had a clearer recollection of events, or the other gave answers which demonstrated that his answers could not be relied on: English at [19].