APPEALING FINDINGS OF FACT: SEEKING FURTHER INFORMATION AND THE CONSTRUCTION OF EXPERT EVIDENCE

I am grateful to Charles Bagot QC for sending me a copy of the judgment of Mr Justice Birss in Price -v-  Cwm Taf University Health Board  [2019] EWHC 938 (QB).   A transcript of the case is available on the Hardwicke website where Charles has an article on the case – here. 

The case contains a reminder of the difficulties in appealing findings of fact, the steps that need to be taken when arguing that a judge has given “inadequate reasons” and the dangers of attempting to persuade an appellate judge to draw inferences from documents such as x-rays.

“Both grounds of appeal relate to findings of fact by the trial judge. In such cases appellants often approach the matter by seeking to persuade the appellate court what the facts are and then inviting a conclusion that the appeal should be allowed because the judge came to a different conclusion and therefore erred.  That is not the right approach…”

THE CASE

The claimant alleged negligence, and a failure to properly warn, in relation to operations carried out to his knee.  The claimant was unsuccessful at trial, and appealed.  The appeal was, primarily, against the trial judge’s findings of fact.

THE JUDGMENT

Birss J

The appeal

1. Both grounds of appeal relate to findings of fact by the trial judge. In such cases appellants often approach the matter by seeking to persuade the appellate court what the facts are and then inviting a conclusion that the appeal should be allowed because the judge came to a different conclusion and therefore erred.  That is not the right approach, particularly when the first step is necessarily based on edited highlights from the evidence below.  The most important principle which I must keep in mind at all times is to remember that I am not the trial judge.  The question is not – what do I think the facts are? The question is – has the trial judge erred in finding the facts as he or she has found them to be?

2. In Wheeldon v Millenium Insurance Co. Ltd [2018] EWCA 2403 Coulson LJ considered the principles applicable to appeals on a finding of fact. He set out a number of passages on the point: paragraph 114 from the judgement of Lewison LJ in Fage v Chobani [2014] EWCA Civ 5 which includes the well known observation about a judge’s reasons; paragraph 67 from Lord Reid’s speech in Henderson v Foxworth [2014] UKSC 41; and paragraphs 39 and 40 of Longmore LJ in Grizzly Business Ltd v Stena Drilling Ltd [2017] EWCA Civ 94.  After that Coulson LJ summarised the position as follows:

“10.  In short, to be overturned on appeal, a finding of fact must be one that no reasonable judge could have reached. In practice, that will usually occur only where there was no evidence at all to support the finding that was made, or the judge plainly misunderstood the evidence in order to arrive at the disputed finding.”

AN ASSERTION OF INADEQUATE REASONS

The judgment also contains a reminder of the steps to be taken when a party is alleging inadequate reasons. It is prudent to take those steps promptly. Otherwise you could have a scenario (as happened here) where the trial judge’s reasons were only received after the appeal was heard.

1. In relation to consent itself it was also argued that the judge’s reasons were insufficient. When the application for permission to appeal came before me on paper it was not clear whether the guidance at paragraph 25 of English v Emery Reimbold [2002] EWCA Civ 605 had been followed, albeit that an application for permission to appeal had been made to the trial judge.  I gave permission on paper but also invited the appellant to consider inviting the judge to give further reasons.  The appellant’s solicitors wrote to the court but by the time of the hearing of this appeal they had received no reply.  However shortly after the hearing the parties received a supplemental judgment from the judge dealing with the issue. I invited and received written submissions from both parties on any points arising.  The appellant’s case was that the supplemental judgment did not alter his case on appeal.  There is no need for a further oral hearing.  I have taken the written submissions into account in deciding this appeal.

FINDINGS OF FACT ON APPEAL

The judgment also contains a warning against an appellate judge attempting to construe expert evidence.

On a number of occasions during the hearing before me counsel for Mr Price drew attention to the fact that simply by looking at the Long Leg image, it appears that the axis of the femoral component is pointing in quite a different direction from the axis of the femur. In my judgment, beguiling though it is, that submission should be resisted.  The interpretation of these X-rays is a matter for suitably qualified experts, or (which is really the same thing) for a judge once they have assumed the mantle of a suitably qualified expert with the assistance of appropriate expert evidence.  Armed with that education the court may well be able to see and understand what the expert is talking about but that is quite a different matter from just looking at the pictures and reacting.

THE RESULT

The claimant’s appeal was unsuccessful.