FINDINGS OF FACT AND CREDIBILITY: THE COURT OF APPEAL WILL RARELY INTERFERE
The decision of the Court of Appeal today in Exsus Travel Ltd -v- James Turner  EWCA Civ 1331 reinforces the points made in earlier posts about the reluctance of the Court of Appeal to interfere with findings of fact and credibility by the judge at first instance.
The defendant appealed against findings of a Deputy Master following accounts taken between the parties.
THE ROLE OF THE APPEAL COURT
- Before embarking upon the specific arguments now raised, it is as well to recall that the appeal is limited to a review of the Master’s decision: CPR 52.11(1); it is not a rehearing of the case. It is important to recall this because our attention has been directed to a relatively small number of specific areas of the account, whereas the Master had to deal with two accounts running to over 2000 items. She also heard evidence from Mr Rooney, Mr Turner and other factual witnesses. As already mentioned, the judge heard several days of oral evidence, putting the dry accounting material into context. She formed views as to the witnesses’ credibility and reliability. We have only been taken to certain snapshots of the oral evidence to which the parties chose to take us. Those views of the Master are, however, of some importance on the appeal.
- The following passage from the judgment of May LJ in EI Du Pont Nemours & Co v ST Du Pont  EWCA Civ 1368 at  usefully summarises the court’s approach to a “review” of a lower court’s decision. Speaking of the concept of a review, May LJ said:
“It is closely akin to, although not conceptually identical with, the scope of an appeal to the Court of Appeal under the former Rules of the Supreme Court. The review will engage the merits of the appeal. It will accord appropriate respect to the decision of the lower court. Appropriate respect will be tempered by the nature of the lower court and its decision making process. There will also be a spectrum of appropriate respect depending on the nature of the decision of the lower court which is challenged. At one end of the spectrum will be decisions of primary fact reached after an evaluation of oral evidence where credibility is in issue and purely discretionary decisions. Further along the spectrum will be multi-factorial decisions often dependent on inferences and an analysis of documentary material.”
ISSUES OF CREDIBILITY
- As part of grounds 4 and 5, the Appellants attack the failure of the Master to address their submissions as to the credibility of Mr Turner as a witness. In paragraph 41 of the skeleton argument for the appeal Mr Alexander and Mr Robins identify seven individual areas of the case which it is said reflect adversely upon Mr Turner’s credibility and which the Appellants complain were not dealt with adequately by the Master in her judgment.
- In paragraphs 194 to 208 of his skeleton argument before us Mr Ohrenstein contests the aspersions cast upon Mr Turner in these respects in some detail. For my part, I find those detailed arguments persuasive.
- In my judgment, it is not necessary to deal with each and every one of these items of dispute between the parties to form a view upon the Appellants’ criticisms of the Master’s credibility findings. It suffices to say that the Master did devote sufficient attention to the respective credibility of the witnesses on the two sides of the case: see paragraphs 110 to 145. It is clear that, where it mattered to the issues in the case, the Master largely considered Mr Turner’s evidence the more credible. In her most significant findings relating to Mr Turner’s credibility (in paragraph 145), she reflected carefully upon those areas of his evidence which had given her cause for concern and noted that in one particular area of the case (the £50,000 bonus) she had not accepted his version of the facts. However, she had no doubt in the end as to the relative merit of the parties’ evidence and she summarised why she found Mr Turner “a generally truthful witness”.
- I do not consider that it is incumbent upon a judge to trawl extensively through every point made as to the credibility of witnesses. It suffices for the judge to say why he/she prefers one witness to another. It seems to me that the Master did that sufficiently here. Where the witness evidence was material to an individual issue on the account, the Master dealt with it. There can be no doubt that the Master found (and was entitled to find) that there was a significant deficit in credibility on the Appellants’ side when compared with the Respondents.
DELAY IN DELIVERING JUDGMENT
One other point of note is the Court’s strident rejection of the appellant’s criticism about the delay in delivering the judgment.
(F) Production of the Judgment
- Finally, I would wish to add a few comments upon certain criticisms made in the written argument for the Appellants with regard to the time that elapsed between the trial and the delivery of the main judgment. In paragraph 4 of the Appellants’ skeleton argument here, there is the following comment:
“The process suffered from unreasonable delay. The Main Judgment was handed down nearly a year after the trial of the account. The first draft of the Main Judgment was provided to the parties more than 6 months after the final written submissions.”
- I do not accept this criticism and to be fair to Mr Alexander, during the hearing, when adverse comments came from all members of the court against his argument on this point, he did not pursue it with any vigour.
- In the appeal papers (13/14/154) we have a note from the Master of the relevant timings, which do not appear to be disputed. The trial began on 11 June 2012. The oral hearing ended on 26 June 2012. Written closing submissions were presented on 17 and 24 July 2012, with further written responses from each side being lodged up to 12 September 2012, before a hearing of oral submissions from counsel on the last mentioned date. More written submission followed up to 15 October 2012. There were apparently 52 bundles of documents and transcripts of 11 days of evidence. It is to me not surprising at all that the draft judgment was not provided to the parties until 15 April 2013.
- I do not accept that the judgment reveals any material failure to recollect evidence or any “inappropriate broad brush approach”.