THE HARB CASE: IT'S ALL ABOUT THE EVIDENCE: A TRIAL JUDGE MUST "SHOW THEIR WORKINGS"
The Court of Appeal judgment in Harb -v- HRR Prince Abdul Aziz Bin Fahd Bin Abdud Aziz  EWCA Civ 556 has attracted a lot of attention because of the comments the Court made about the allegations of judicial bias. However it is important to remember that this appeal was not decided on the basis of allegations of bias. It was decided because the Court found that the trial judge had not dealt adequately with the witness evidence.
A judge cannot simply state that they prefer one witness to another. The trial judge is required to give reasons for such preference. The appeal courts give much deference to a trial judge’s view of a witness. However this deference does not amount to blind acquiescence.
- In Central Bank of Ecuador and others v Conticorp SA and others  UKPC 11;  WLR (D) 150 the Privy Council set aside a trial judge’s finding that there was no dishonesty on the part of witnesses and found that there was.
- Similarly in Elliston -v- Glencore Services (UK) Ltd  EWCA Civ 407 the Court of Appeal overturned key findings of fact and overturned a judgment, entering judgment for the defendant.
This type of case is, however, unusual. Harb is a rare example.
THE KEY POINT OF THE COURT OF APPEAL DECISION IN HARB
“Our system of civil justice has developed a tradition of delivering judgments that describe the evidence and explain the findings in much greater detail than is to be found in the judgments of most civil law jurisdictions. This requires that a judgment demonstrates that the essential issues that have been raised by the parties have been addressed by the court and how they have been resolved. In a case (such as this) which largely turns on oral evidence and where the credibility of the evidence of a main witness is challenged on a number of grounds, it is necessary for the court to address at least the principal grounds. A failure to do so is likely to undermine the fairness of the trial. The party who has raised the grounds of challenge can have no confidence that the court has considered them at all; and he will have no idea why, despite his grounds of challenge, the evidence has been accepted. That is unfair and is not an acceptable way of deciding cases.”
THE ISSUE IN HARB
The claimant’s case was that the defendant had agreed to pay her £11 million.. This had been an oral agreement which, the claimant stated, was legally binding.. Both of these elements were denied by the defendant. The trial judge identified difficulties with the claimant’s account when giving evidence, however he gave judgment in her favour.
THE JUDGMENT OF THE COURT OF APPEAL
The Court of Appeal overturned the trial judge’s findings. It was held that judge had not approached the evidence, or assessed the matter, in a satisfactory manner. Consequently the judgment was set aside and a retrial ordered.
THE COURT OF APPEAL’S ASSESSMENT OF THE TRIAL JUDGE’S APPROACH TO THE EVIDENCE
“In our view the judge’s approach to the evidence was unsatisfactory in a number of significant respects. First, he failed to identify in sufficient detail the questions that needed to be answered if he were to decide whether an agreement of the kind alleged by Mrs. Harb had been made. In addition, he failed to carry out a proper evaluation of all the evidence in order to test its strengths and weaknesses. Having referred in para 80 to the fact that counsel for the Prince had made extensive criticisms of Mr. Harb’s evidence on the grounds that it was inconsistent with her witness statement, he failed to deal with any of those criticisms and brushed them aside by saying that it was unrealistic to expect Mrs. Harb to have a clear recollection of events 13 years after the event. That fails to recognise that her statement itself had been made very shortly before the hearing, when her recollection, whether good or bad, should have been much the same as it was at trial. It also fails to deal with the criticisms of the quality of her evidence and the way in which she responded to questions.
Similar criticisms can be levelled at the way in which the judge dealt with the evidence of Mrs. Mustafa-Hasan. He did not subject it to any serious degree of scrutiny; in particular, he did not deal with the submission that she had collaborated with Mrs. Harb and was not truly independent. He merely said at para 39 that her recollection was clear and that she had maintained it confidently throughout her cross examination. The transcript of her evidence suggests, however, that on many occasions she was anything but clear and that she too was unable or unwilling to deal in a simple and straightforward way with some of the questions put to her.
Secondly, the judge failed to advert to a number of aspects of the evidence that were potentially relevant to important areas of the case. For example, there was a significant body of evidence, both before and after the events of 20th June 2003, which suggested that Mrs. Harb regarded the Prince and others with whom she dealt as the representatives of the King. Thus, correspondence between Mrs. Harb’s solicitors and various members of the royal household, including the Prince, was clearly intended to bring about concessions from the King himself. The agreement reached in March 2001 was undoubtedly made between her and the King as undisclosed principal of Mr. Martini. This evidence was not necessarily fatal to the case that the Prince had been acting in a personal capacity, but it was relevant to that question and ought to have been, but was not, considered and taken into account.
Thirdly, the judge failed to draw together the evidence from the various different sources and analyse it in order to make his findings in relation to individual issues. The evidence, not just of the witnesses but also of the documents, pointed in different directions. Whether the judge was right in his conclusions or not, in a case of this kind he owed it to the parties to identify the relevant evidence, discuss its significance and explain why he had reached the particular conclusion. That required him to analyse the various possible implications of different strands of evidence, as well as the inherent probabilities. He failed to do this. For example, the fact that on the morning of 20th June Mrs. Harb asked Mr. Marshall and Mrs. Simon to prepare a draft contract and other documents could be taken as supporting her account that she had, as she said, made an agreement with the Prince, or, by contrast, as suggesting that, if anything had been agreed, it was “subject to contract”. Nor did he overtly consider the inherent probabilities and, if necessary, explain how they had been taken into account. The fact that (as now seems to be common ground) the Prince had been unaware of the existence of the properties tended to detract from the likelihood of his having made an explicit promise to transfer them to Mrs. Harb, but the judge did not deal with that point. The fact that she took no steps herself to pursue a claim against the Prince (these proceedings were issued by her trustee in bankruptcy) was another piece of evidence that should have been taken into account.
In the light of these matters, it seems clear to us that the judge, in effect, took a short cut. Having decided that Mrs. Harb was a reliable witness, he accepted that she had made out her case in all respects. He did not, for example, ask himself whether her recollection may have been unreliable in any important respect, and if so, what the implications of that were. Nor did he ask himself whether any agreement that Mrs. Harb had made with the Prince at the Dorchester Hotel was informal and not intended at that stage to create legal relations. That was a serious question since, as she herself accepted, the terms of any retraction would have to be acceptable to the Prince if she were to be entitled to obtain what she wanted from him. Yet the judge found that the parties had entered into an unconditional binding agreement, despite the fact that the terms of the retraction had not been discussed, let alone agreed.
Our system of civil justice has developed a tradition of delivering judgments that describe the evidence and explain the findings in much greater detail than is to be found in the judgments of most civil law jurisdictions. This requires that a judgment demonstrates that the essential issues that have been raised by the parties have been addressed by the court and how they have been resolved. In a case (such as this) which largely turns on oral evidence and where the credibility of the evidence of a main witness is challenged on a number of grounds, it is necessary for the court to address at least the principal grounds. A failure to do so is likely to undermine the fairness of the trial. The party who has raised the grounds of challenge can have no confidence that the court has considered them at all; and he will have no idea why, despite his grounds of challenge, the evidence has been accepted. That is unfair and is not an acceptable way of deciding cases.”
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- The Central Bank of Ecuador case revisited: the Ocean Frost approach.
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- Reliability of witness evidence: honesty is not the same as reliability