JUDGES, FACT FINDING AND GRENFELL: THE CRUCIAL QUESTION – IS THIS JUDGE A GOOD FACT FINDER
If you write a blog on civil procedure it is not hard to steer a course away from the issues of the day. However there is one issue of the day that is hard to ignore. The criticisms of the appointment of Sir Martin Moore-Bick to chair the Inquiry into the Grenfell Tower disaster. I have looked at the criticisms of the appointment of Sir Moore-Bick with exasperation. No-one, but no-one has asked the central question that everyone affected by this tragedy needs to know – is this judge a good fact finder?
THE JUDGE AS FACT FINDER
The role of a judge as fact finder is one that is often overlooked by academics and practitioners alike. However it is often the central part of a judge’s job in the civil courts. The basic finding of, often hotly, contested facts requires judges to develop skills and expertise in the assessment of lay and expert evidence. In fact this is the task which society entrusts to judges most. A judge who makes an error of law will have their findings overturned on appeal. It is extremely difficult to overturn a finding of facts.
The residents of Grenfell and their representatives cannot be blamed for not knowing of the important role of the judge as fact-finder. Nor can they be expected to know and the essential skills that have to be developed by a trial judge. It is something barely acknowledged, or studied, in legal education or training. It is rarely mentioned in the media. It is never a matter of public debate. The methods by which judges go about the assessment of evidence, deal with technical evidence and contradictory witnesses are not universally discussed. (In fact this blog is one of the few places where there is a regular consideration of issues relating to fact finding and the assessment of witness credibility).
FACT FINDING IN THE CIVIL COURTS
In the civil courts the judge’s role as fact-finder is the central part of their job. A trial judge has to consider witness evidence, expert and documentary evidence before making a finding on the facts. This has to be a reasoned finding based on the evidence before the court.
FACT FINDING IN THE COMMERCIAL COURTS
Much has been made of the fact that Mr Moore-Bick has a background in the commercial courts – indicating that he has led a life far away from reality. Anyone who thinks that the commercial courts are some kind of pastoral backwater – dream on. At times the evidence in the commercial courts make the activities at the Old Bailey look like a kindergarten class.
- Most of the cases on witness credibility covered in this blog come from the commercial courts.
- Witnesses are often found to be lying. Applications to commit to prison are almost commonplace.
- The case in which witness credibility is covered in a full and definitive manner – Gestmin – was a case in the Commercial Court. (Most of the cases where Gestmin is considered are cases in the commercial courts)
- A brief examination of the cases will see that these involve everything from forgery, perjury, the deliberate sinking of a ship, and experts who were so partisan they simply stopped coming to court.
HOW RELEVANT IS THIS TO GRENFELL?
As I write we can be certain that teams of (very expensive) lawyers are preparing the evidence on behalf of the many corporate interests involved. Similarly teams of (very expensive) experts will be instructed in an attempt to persuade the Enquiry that the party who instructs them are not at fault.
At the Enquiry itself we can be certain that many of the victims will give different, sometimes contradictory, accounts of what happened. None of these will be lying. It will need a careful and expert fact=finder to make sure every witness is treated carefully and sympathetically while the accurate parts of their evidence is fully and properly accepted.
Again we can be certain that lawyers, and pressure groups, for the multitude of parties involved will be putting through hotly contested versions of the facts, ranging from the basic terms of the contract, the technical aspects of the cladding, to what happened during teh fire.
Someone, and someone very capable, is going to have to cut through all this evidence to come to the truth as to what happened.
Make no mistake this is going to be a difficult and laborious process. Getting to the bottom of, probably several decades, worth of policies, technical information and numerous witnesses (some of whom will be very anxious to deflect blame).
SO IS SIR MOORE-BICK A GOOD FACT FINDER?
This is a proper and legitimate questions. Perhaps the only proper and legitimate question. Sir Martin spend 11 years in the Court of Appeal so I have had to go back a long way to look at first instance decisions. The difficulties are compounded by fact that this pre-dates Baiili, and law reporters are rarely interested in judgments based on vigorous findings of fact. However I have read many of the first-instance decisions. These are never easy reading however, on the basis of the (many) cases I have read:
- This is not a judge who was overawed by expert evidence.
- This is a judge who was able to consider contractual terms and documentary evidence in depth.
- The judgments, on findings of fact, are careful and detailed.
There are many examples, see for instance, Agapitos -v- Agnew  EWHC 1558 Com where Sir Martin makes vigorous and clear findings of fact in a shipping case which involved a fatality and an investigation by Greek authorities. I stress that this is just an example there are many more in a similar vein (and reading them was the first time writing this blog has ever felt like work). The judgments emphasise my central point – this is someone who has the skills and ability to find facts without fear or favour.
YOU WOULD SAY THAT WOULDN’T YOU
Some people reading this, particularly outside the legal profession (if this blog is read by anyone outside the legal profession) may see this as a simple upholding of a judge – barrister as apologist. It is not. I have spend many years writing and researching on civil procedure and evidence (not to mention over 30 years in practice as a lawyer). As I have said this blog is one of the few places that looks at civil evidence, and the job of fact-finding, in any depth or detail. The legal system, and legal profession, is far from perfect. However the basic, and as I have said often laborious, task of fact finding has to be done by someone with the ability and experience to do the job.
What is to be done after those findings of fact are made is a matter for politicians and policy makers. The central task now is to establish the facts. There is no doubt that Sir Martin Moore-Bick is the best person for this task.