THE ROLE OF THE APPELLATE COURT IN CONSIDERING FINDINGS OF FACT
In Clydesdale Bank -v- Duffy  EWCA Civ 1260 the Court of Appeal set out a clear statement of the limited role of the appeal court in considering appeals in relation to findings of fact by the trial judge.
The bank was suing under a guarantee. There was a two day preliminary trial as to whether certain meetings were without prejudice and whether evidence of these meetings could be adduced at trial. The judge found that, with one exception, the meetings were not without prejudice and evidence of the meetings could be admitted at trial.
THE OBSERVATIONS ON APPEAL
- The Court of Appeal is not here to retry the case. Our job is to review the decision of the trial judge. If he has made an error of law, it is our duty to say so, but reversing a trial judge’s findings of fact is a different matter. Both counsel agreed that the burden of persuading an appeal court to reverse a trial judge’s findings of fact is a heavy one. 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 series of cases, all in the House of Lords or the Supreme Court, culminates in McGraddie v McGraddie  UKSC 58  1 WLR 2477.
THE FINDINGS IN THIS CASE
- The judge also considered whether the whole of the negotiations that had begun in the summer of 2008 and continued into the summer of 2009 were properly to be characterised as a “continuous and extended course of negotiations”. Having reviewed the evidence both before and after the alleged agreement in October 2008 the judge accepted Mr MacDonald’s submissions that the negotiations were part of a “seamless whole”. He pointed to a number of contemporaneous documents which supported that conclusion and which were inconsistent with Mr Duffy’s primary case that the alleged agreement had been made while quite properly refraining from reaching any firm conclusion on those facts which had still to be tried.
- This is the sort of evaluative conclusion which our system entrusts to the trial judge. It is not the function of the appeal court to trawl through cherry picked parts of the evidence in order to reach its own independent conclusion.
THE OBSERVATIONS IN McGRADDIE
We need only look at the opening paragraphs of the speech of Lord Reed (with whom all other members of the Court agreed).
- In the sets of Session Cases in the Advocates Library, the volumes for 1947 fall open at Thomas v Thomas 1947 SC (HL) 45;  AC 484, where one finds in the speech of Lord Thankerton at pp 54 and 487-488 what may be the most frequently cited of all judicial dicta in the Scottish courts:
“(1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusion. (2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”
- The principles stated in Thomas v Thomas had, even then, long been settled law: the speech of Lord Shaw of Dunfermline in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36-37, where he said that an appellate court should intervene only it is satisfied that the judge was “plainly wrong”, is almost equally familiar. Accordingly, as was said by Lord Greene MR in Yuill v Yuill P 15, 19, in a dictum which was cited with approval by Viscount Simon and Lord Du Parcq in Thomas at pp 48, 62-63, 486 and 493 respectively, and by Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd  UKHL 45; 2004 SC (HL) 1, para 17:
“It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion.”
- The reasons justifying that approach are not limited to the fact, emphasised in Clarke and Thomas, that the trial judge is in a privileged position to assess the credibility of witnesses’ evidence. Other relevant considerations were explained by the United States Supreme Court in Anderson v City of Bessemer 470 US 564 (1985), 574-575:
“The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one: requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be ‘the “main event” … rather than a “tryout on the road.” … For these reasons, review of factual findings under the clearly erroneous standard – with its deference to the trier of fact – is the rule, not the exception.”
- Furthermore, as was stated in observations adopted by the majority of the Canadian Supreme Court in Housen v Nikolaisen  2 SCR 235 at para 14:
“The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.”
- While the law is not in doubt, its application has been inconsistent. From time to time it has proved necessary for its application to be considered at the highest level, in Scotland as in other jurisdictions.
- In the present case, Clarke and Thomas were cited in the opinion of the Extra Division ( CSIH 23) in the time-honoured fashion. Counsel for the appellant however began his submissions by reminding the court of the words of Lord Hope in the case of Thomson v Kvaerner Govan Ltd  UKHL 45; 2004 SC (HL) 1 at para 16:
“The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked.”
Whether there has indeed been a failure to follow the proper approach is the issue which this court has to decide.”