EVALUATING EVIDENCE ON APPEAL: THE APPELLATE COURT WILL NOT READILY DISPLACE THE FINDINGS OF THE TRIAL JUDGE
I am grateful to Christopher Kardahji from Irwin Mitchell solicitors for sending me a copy of the judgment of Mr Justice Freedman in Lenord -v- First Manchester Limited  EWHC 982 (QB). The judgment contains a detailed analysis of the role of the appellate court when considering an appeal on findings of fact and the trial judge’s evaluation of those facts. A copy of that decision is available here Brian Lenord v First Manchester Limited  EWHC 982 (QB) Approved J..
“Applying the law about the nature of a review and the authorities referred to above, this is not a case where it is appropriate to carry out a fresh evaluation. It is a case to consider the Recorder’s evaluation and find out if there is anything on which to take exception”
The claimant was struck by a bus whilst crossing the road in Manchester. The claimant had no recollection of the accident, the bus driver and one other witness gave evidence. The trial judge’s (Recorder) evaluation rested largely on their evaluation of CCTV footage.
“The Recorder started his judgment by saying that “The facts of this case are exceptionally straight-forward and the evidence was dealt with in very short order. However, I confess that I have not found this an easy case to decide.”
The judge found that the claimant was one-third contributory negligent.
The defendant appealed – arguing that the Recorder had been wrong in their evaluation of the facts. One main issue, essentially, on appeal was whether the appeal judge – who could view the same CCTV footage as the trial judge – could use their own evaluation of the footage to come to a different conclusion.
AN “EVALUATIVE” DECISION
The defendant argued that this was an “evaluative” decision of the Recorder and the appellate court could substitute its own judgment.
“The Appellant says that in this case, where the evidence turned “almost exclusively” on the CCTV footage (Judgment paragraph 16), the appellate court is in as good a position as the Recorder to assess what occurred. He says that in such a case there is no practical difference between a review and a rehearing. Having seen the video evidence, the appellate court is able to form its view as to breach of duty and causation. If its view were different from that of the first instance court, then its decision would be wrong and should be set aside. When asked where the caution of Lord Hoffmann about differing from the Judge’s evaluation should be, the answer of Mr Taylor was that in a case where it was all or almost all on video, the appellate court was simply able to substitute judgment for that of the first instance court. “
THE JUDGE’S CONCLUSION
The judge rejected the defendant’s argument about the scope of the appeal. The judgment contains a detailed consideration of the cases relating to the role of the appellate court. Mr Justice Freedman concluded:-
Applying the law about the nature of a review and the authorities referred to above, this is not a case where it is appropriate to carry out a fresh evaluation. It is a case to consider the Recorder’s evaluation and find out if there is anything on which to take exception. This is not a case like the Manning case where there was a demonstrable factual error at the heart of the findings. This was a case which depended on an evaluative judgment, where an appellate court is particularly reluctant to interfere and for good reasons adumbrated above. This Court has considered the reasoning of the Recorder. It has considered also the surrounding circumstances. Based on this, I am satisfied that the judgment of the Recorder was one which was available to him. The reasoning was cogent. There is no reason to challenge the decision. It was not ‘wrong’.
It is appreciated that in a case which is “not easy”, the losing side is likely to be disappointed. However, the trial was conducted entirely properly. The Recorder came to a conclusion based on evaluative judgments which emerged as a result of a careful account of the evidence. It was a conclusion that was available on the evidence as a whole. There is nothing to criticise about the logic, consistency and material factors taken into account. The decision both as to breach of duty and causation are closely interlocked: they are also separate, and the two were considered separately.
The Recorder has examined the relevant factors and applied the correct legal tests. He has also carried out well the reasoning process of setting out his reasons for his decision in terms which are clear and easy to understand. The decision to find both breach of duty and causation established was available to the Recorder on the evidence as a whole.
The judgment of the Recorder has been well analysed by the parties on the hearing appeal, and there has been an attempt to have a detailed appreciation of the competing notions. Having in that context engaged in an appeal by way of review rather than an appeal by way of hearing, I am satisfied that the Recorder has reached evaluative judgments which were available to him as to both breach of duty and causation. There is no reason for the appellate court to form a different view from that of the Recorder.
In these circumstances, an accident occurred for which the Appellant must share a part of the legal responsibility. The Respondent was entitled to have a finding of liability in his favour subject to contributory negligence. There is no challenge against the apportionment of contributory negligence. In the appeal, the Appellant has been unable to show that the decision was “wrong” or unjust because of a serious procedural or other irregularity in the proceedings in the court of first instance. It follows that there is no reason in those circumstances to set aside the order. For all these reasons, the appeal must be dismissed.