APPEALS ON ISSUES OF FACT: SPECULATION AND "OPINION" EVIDENCE FROM WITNESSES IS TO NO AVAIL
In Macleod -v- the Commission of Police for the Metropolis  EWCA Civ 688 the Court of Appeal set out the criteria for appealing findings of fact. Further the case highlights the important distinction between what witnesses saw and what they thought they saw. In particular “opinion” evidence from lay witnesses was, rightly, disregarded.
The claimant was cycling and injured by a police car travelling at speed. His injuries were so severe he could not give evidence.After a liability only trial lasting five days the judge found for the claimant. The defendant appealed on the grounds that the findings of fact were against the weight of the evidence.
APPEALS AGAINST FINDINGS OF FACT
The principles were considered in the judgment of Lord Justice Jackson:-
- It is well settled that the Court of Appeal will not lightly interfere with a judge’s findings of fact. It can only do so where the judge’s decision was wrong. There are numerous authorities to this effect, collected together by Lewison LJ in Fage UK Limited and another v Chobani UK Limited and another  EWCA Civ 5 at 114. Lord Neuberger explained the principle and its rationale in Re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33;  1 WLR 1911 as follows:
“52. …The Court of Appeal, as a first appeal tribunal, will only rarely even contemplate reversing a trial judge’s findings of primary fact.
53. As Lady Hale and Lord Kerr explain in para 200 and para 108 respectively, this is traditionally and rightly explained by reference to good sense, namely that the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it. This can also be justified on grounds of policy (parties should put forward their best case on the facts at trial and not regard the potential to appeal as a second chance), cost (appeals on fact can be expensive), delay (appeals on fact often take a long time to get on), and practicality (in many cases, it is very hard to ascertain the facts with confidence, so a second, different, opinion is no more likely to be right than the first).”
DISTINGUISHING BETWEEN EVIDENCE AND SPECULATION
Jackson L.J. went on to consider the detailed criticisms based on the transcripts.
- I was wholly unimpressed by these forays into the written evidence and the transcripts of cross-examination. There is always a need with accident witnesses to be careful to distinguish evidence of what they actually saw from evidence about they think might have happened. The judge was plainly alert to this danger when evaluating the evidence of the various witnesses.
- Thus, although Ms Walton had certainly recorded an impression that the man was thrown from east to west, she also said that she did not see enough of the accident to be able to say where the man had come from. Her final sentence was “All I can say for sure is that the police car was travelling from south to north and the man travelled from west to east in the air, I think“. This is hardly a promising basis for a submission that the judge ought to have accepted this account. In any event I do not see how the claimant can have been thrown any appreciable distance west to east when he ended up due north in the left hand lane of Southgate Road. To make matters worse, during cross-examination, Ms Walton volunteered that she had been “sort of told what had happened and … I sort of assumed that was right“.
- Similarly Ms Hutchings explained in cross-examination that what she had said about the cyclist coming from Northchurch Road was an assumption. She explained that she did not think she had seen the cyclist at all.
- Ms Knight’s account also had inconsistent features, not least her account of the impact occurring at right angles, which was inconsistent with the physical evidence. She also places the resting place of the bicycle in Northchurch Road. In cross-examination she accepted that the branches of the tree were substantial, even though not in leaf at that time of year, and had blocked her view so that she could not get a proper picture of what happened. As to what she saw at the point of collision she accepted that it was “all a bit of a blur” and she might be mistaken. Later in her evidence when, being cross-examined by Mr Waters, she started to refer to the bicycle being at “an angle” to the car. It is fair to say that Mr Waters managed to get Ms Knight to accept that the angle was such that it was impossible for the cyclist not to be coming down Northchurch Road. I would, for myself, have regarded that as opinion evidence that Ms Knight was unqualified to give. The judge was perfectly entitled to accord it no weight.”
- Appealing on the judge’s findings of fact: A trial is not a dress rehearsal but “the first and last night of the show”.
- Overturning findings of facts and “inferences” on appeal.
- Opinion evidence in witness statements.
- Witness statements are for facts: knowing the difference between evidence and submissions (and why it matters).
- What the Jackson report said: Problems with witness statements: “lengthy, irrelevant and rambling”