FINDINGS OF FACT AND THE TASK OF THE TRIAL JUDGE: A REASONED DETERMINATION OF THE DISPUTE ON THE EVIDENCE AT TRIAL – NOT A SEARCH FOR “THE TRUTH”

There has been a spate of cases recently relating to appeals of findings of fact by a trial judge. There are major problems in such appeals, this is illustrated by the judgment of Mr Justice Andrew Baker in Auliffe & Ors v Ellis [2019] EWHC 1427 (QB).  That judgment also contains important observations as to the role of the trial judge when making findings of fact and the approach to evidence of a “negative” fact. That is – is a judge bound to accept evidence that a notice was not received?

“… under our adversarial trial system, the task of the judge on disputed matters of fact is not, as such, to determine the truth (whatever might be meant by that anyway, an issue for philosophers perhaps as much as or more than for judges). It is to identify what needs to be proved, by whom, upon the basis of a correct identification and analysis of the legal rules governing the case; and then to form a judgment (doing so rationally, reasonably and impartially), for each such proposition of fact, as to whether the evidence presented at trial made what the party bearing the burden of proof says occurred appear – more probably than not – to be what occurred. The purpose of the court being to provide and manage a fair pre-trial process affording the parties a reasonable opportunity to formulate and present their cases, and to understand and respond to their opponents’, to conduct a fair trial, then to provide, upon the basis of that trial, an impartial, reasoned determination of the dispute on the basis of the cases presented at trial following that process, and not, as such, to discover, uncover, or declare ‘the truth’.”

THE CASE

The case centred on whether a Notice to Quit for an an agricultural property had been received.  It was accepted that the Notice was sent to the correct address. The burden of proof shifted to the defendant to show it was not received. After a one day trial the Circuit Judge found that the notice had been received. The Defendant appealed that finding.

APPEALS AS TO FINDINGS OF FACT

On appeal Andrew Baker J reviewed the principles in relation to findings of fact:
    1. I agree with Dingemans J’s recent summary of the approach to appeals against findings of fact by trial judges, in Walsh v Kirklees BC [2019] EWHC 492 (QB), at [23]-[24]:

23.  It is well-established that appellate courts have to be very cautious in overturning findings of fact made by a trial judge, see McGraddie v McGraddie [2013] UKSC 58[2013] 1 WLR 2477. This is because trial judges have seen witnesses and take into account the whole “sea” of the evidence, rather than indulge in impermissible “island hopping”, and because duplication of effort on appeal is undesirable and will increase costs and delay, see Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5[2014] ETMR 26.

24.  Further appellate courts will only interfere if the trial judge was plainly wrong, Henderson v Foxworth Investments Ltd [2014] UKSC 41[2014] 1 WLR 2600. This means making a finding of fact which had no basis in the evidence or, particularly relevant to this appeal, showing a demonstrable misunderstanding of relevant evidence or a demonstrable failure to consider relevant evidence so that the decision cannot reasonably be explained or justified.

  1. Whilst this case does not turn on the precise formulation of the principles, I was referred to a number of other summaries, in particular in JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176 at [43], Datec Electronics Holdings Ltd v UPS Ltd [2007] UKHL 23[2007] 1 WLR 1325 at [46] (referring in turn to Manning v Stylianou [2006] EWCA Civ 1655) and Weymont v Place [2015] EWCA Civ 289.
  2. Mr Batstone also relied on a recent statement by Leggatt LJ, in a judgment with which Lewison LJ and Sir Colin Rimer agreed, in R (SS (Sri Lanka)) v Secretary of State for the Home Department [2018] EWCA Civ 1391 at [36], that “Generally speaking, it is no longer considered that inability to assess the demeanour of witnesses puts appellate judges “in a permanent position of disadvantage as against the trial judge”“, because “it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness’s demeanour as to the likelihood that the witness is telling the truth.” As Mr Batstone also noted, though, this is not a case in which the trial judge relied upon, or mentioned at all, matters of demeanour in concluding, as ultimately he did, that he did not feel able to trust the evidence of Mrs Ellis and Richard that the notice to quit letter was not delivered.
  3. Demeanour in the witness box is indeed understood to be no general indicium of honesty. But that is not to say that judging issues of primary fact involves no element of reading witnesses as individuals, and one aspect of that is, or at least can be, evaluating the meaning or significance, if any, of variation in a witness’s demeanour as between different topics or particular questions. Nor does treating demeanour as, in general, an unreliable guide to reliability mean that reading a written transcript is always, or even usually, as good as being at the trial.
  4. For example, in the present case, a key part of the trial was cross-examination of Mrs Ellis on her claim that the wrong address had been used and therefore the notice to quit letter had gone astray. Reading that part of the transcript, I have no difficulty envisaging how it could have struck an impartial judge as rendering Mrs Ellis’ evidence on the central factual issue quite unsatisfactory. Mr Batstone, who like Ms Cattermole appeared at trial as well as before me on the appeal, told me that was not how it struck him at the time; but he was not the judge. The submission on appeal would have to be that no impartial judge, considering the evidence rationally, dispassionately and as a whole, could have formed an adverse view as to the reliability of Mrs Ellis’ claimed recollection that the notice to quit letter was never delivered.
  5. It is also pertinent to bear in mind throughout that under our adversarial trial system, the task of the judge on disputed matters of fact is not, as such, to determine the truth (whatever might be meant by that anyway, an issue for philosophers perhaps as much as or more than for judges). It is to identify what needs to be proved, by whom, upon the basis of a correct identification and analysis of the legal rules governing the case; and then to form a judgment (doing so rationally, reasonably and impartially), for each such proposition of fact, as to whether the evidence presented at trial made what the party bearing the burden of proof says occurred appear – more probably than not – to be what occurred. The purpose of the court being to provide and manage a fair pre-trial process affording the parties a reasonable opportunity to formulate and present their cases, and to understand and respond to their opponents’, to conduct a fair trial, then to provide, upon the basis of that trial, an impartial, reasoned determination of the dispute on the basis of the cases presented at trial following that process, and not, as such, to discover, uncover, or declare ‘the truth’.
  6. In this case, a correct identification and analysis of the legal rules governing the case meant that the Auliffes established their right to possession of Teign Marsh (and mesne profits for its continued occupation and use by Mrs Ellis as executrix of her late husband’s will) as from Christmas Eve 2014 by proving, as they did, the sending of the notice to quit, correctly addressed, in time to be received, if delivered in the ordinary course of post, by 14 September 2013, unless Mrs Ellis then proved in turn that, despite being so sent, it was not in fact so delivered. Her case to that effect, which therefore she needed the evidence at trial to persuade HHJ Gore QC to find, was that in fact the notice to quit never arrived. He was not so persuaded. However the test for an appeal against primary factual findings is expressed, it starts from the fundamental premise that it is not enough for Mr Batstone to persuade me that, unlike HHJ Gore QC, I would (or might) have been persuaded; I am not the trial judge any more than was Mr Batstone. For Mrs Ellis’ appeal to succeed, ultimately I must be persuaded to the view that there is something wrong with the process by which, or reasoning upon which, HHJ Gore QC found that he had not been persuaded by her case.

 

THE DISMISSAL OF THE APPEAL

The appeal from the Circuit Judge failed.  This part of the judgment also raises interesting issues about proving a “negative”. That is proving that a notice had not been received.   The absence of direct evidence in response to counter a “negative” is not necessarily definitive.
    1. It will be apparent from that summary and analysis of the judgment that for Mrs Ellis’ appeal to succeed, I would have to be persuaded that the judge was not entitled to take the view he did that her and Richard’s evidence insisting that the notice to quit letter was not delivered was not sufficiently trustworthy to tip the balance in favour of such a finding. By Amended Grounds of Appeal (the amendment being to add a sixth ground of appeal, permission for which I granted during the hearing), Mr Batstone sought to persuade me that the judge was not entitled to take that view because:
1) The judge rejected [Mrs Ellis’] evidence that she did not receive the notice to quit … partly on grounds that she had not been given the opportunity to answer, either in cross-examination or in questioning by the Judge, which deprived [Mrs Ellis] of a fair trial.
2) The reasons the Judge gave for not being impressed with the evidence of [Mrs Ellis] and … Richard were inadequate.
3) The Judge misdirected himself to the effect that facts upon which [Mrs Ellis] relied in support of a finding that the notice to quit had not been served were submissions and not evidence and so failed to consider all the evidence in rejecting [her] evidence that she did not receive the notice to quit.
4) The Judge failed to identify, let alone consider, evidence that [Mrs Ellis] relied upon in support of a finding that the notice to quit had not been served that was probative of the notice to quit not having been served.
5) The Judge misdirected himself to the effect that … where [Mrs Ellis’] evidence conflicted with the evidence of others he preferred that other evidence because in truth there was no other evidence in conflict with that of [Mrs Ellis] and the perceived conflict did not provide a reason for rejecting [her] evidence that she did not receive the notice to quit.
6) The Judge accepted oral evidence of [Mrs Ellis’] witness Mr Butler that he had been called to attend a meeting with [Mrs Ellis] and her son Richard in June/July 2014 to discuss tenancy issues when that was not foreshadowed in Mr Butler’s witness statement and in closing submissions the Judge had informed [Mrs Ellis’] Counsel that he was prepared to accept that the pre-meeting communicated reason for that meeting was not tenancy issues.
    1. It is possible to dispose of most of those Grounds very briefly. Thus:
i) HHJ Gore QC’s expressed reasons for being unimpressed by Mrs Ellis’ and Richard’s evidence were succinct, but they were clear and plainly adequate. If his conclusion, that their evidence was not to be trusted, is to be challenged, it cannot be because it was insufficiently explained. It must be because one or more of the reasons given was, or was the product of, some appealable error, or because of a failure to consider some material matter the judge was bound to consider. Ground 2) in the Amended Grounds of Appeal is unfounded.
ii) I have already indicated (paragraph 36.i) above) that the first part of Ground 3) is an unwarranted criticism of the judge. It therefore adds nothing to Grounds 4) and 6). I disagree that the judge’s review of the submissions at [35]-[45] involved any failure to consider the evidence upon which those submissions were founded (to the extent they depended on matters of fact and were not just comment). Rather, the judge fairly identified, and accepted (subject only to the point now separately raised under Ground 6)), such matters of primary fact as were relied on by Mrs Ellis in relation to those submissions or were used as the springboard for those submissions. His evaluation, though, was that those submissions were not persuasive and, in particular, did not outweigh (in persuasiveness) the submissions put forward by the Auliffes. There is no basis for interfering with that evaluation. I shall therefore give Ground 3) no further consideration.
iii) It is convenient to take Grounds 5) and 6) together. There was no direct evidence in conflict with Mrs Ellis’ basic evidence that she had not received the notice to quit only in the very limited sense that there was no witness testimony or documentary record of her receiving it. Mr Batstone’s submission that because there was no such evidence, i.e. no direct evidence witnessing receipt, Mrs Ellis’ and Richard’s evidence of non-receipt should have been accepted is a simple non sequitur. Of course, witness testimony that something happened (or did not happen) cannot only be rejected where there is directly contradictory documentary evidence or witness testimony. Here, there was important evidence that conflicted with Mrs Ellis’, on matters relevant to the likelihood of her basic evidence being accurate, most notably as to the importance or likely impact of the fact that the key letters had been addressed to ‘Greatastone Farm’. Mr Butler’s evidence that it became apparent when he met Mrs Ellis in about June 2014 that one reason for the meeting was to discuss tenancy issues, was another such conflict. That evidence, accepted by the judge, was not inconsistent with the proposition the judge indicated in closing that he would accept, namely that discussing tenancy issues was not communicated to Mr Butler prior to the meeting as the reason for it. There was nothing unfair in the judge’s acceptance of that evidence, there is no basis upon which I could second-guess that acceptance on appeal, and the judge was perfectly entitled to regard it as creating one of the difficulties with Mrs Ellis’ testimony that meant he did not feel able to treat it as reliable.