APPEALING FACTS IN THE COURT OF APPEAL: “ISLAND HOPPING” IS HARD TO DO

In Volpi & Anor v Volpi [2022] EWCA Civ 464 the Court of Appeal highlighted the difficulties an appellant faces when seeking to appeal findings of fact.  Such appeals are not always unsuccessful, however the appellant faces a very difficult task.

it is not for an appeal court to come to an independent conclusion as a result of its own consideration of the evidence. Whether we would have reached the same conclusion as the judge is not the point”

THE CASE

A judge had found at trial that money advanced to the appellant was by way of interest free loan and not a gift.  The appellant appealed that finding of fact.

APPEALS AGAINST FINDINGS OF FACT

Lord Justice Lewison sets out the primary principles relating to appeals on findings of fact.

Appeals on fact
    1. The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled:
i) An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.
    1. If authority for all these propositions is needed, it may be found in Piglowska v Piglowski [1999] 1 WLR 1360McGraddie v McGraddie [2013] UKSC 58[2013] 1 WLR 2477Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5[2014] FSR 29Henderson v Foxworth Investments Ltd [2014] UKSC 41[2014] 1 WLR 2600Elliston v Glencore Services (UK) Ltd [2016] EWCA Civ 407JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176, [2019] BCC 96; Staechelin v ACLBDD Holdings Ltd [2019] EWCA Civ 817[2019] 3 All ER 429 and Perry v Raleys Solicitors [2019] UKSC 5[2020] AC 352.
    1. Similar caution applies to appeals against a trial judge’s evaluation of expert evidence: Byers v Saudi National Bank [2022] EWCA Civ 43[2022] 4 WLR 22. It is also pertinent to recall that where facts are disputed it is for the judge, not the expert, to decide those facts. Even where expert evidence is uncontroverted, a trial judge is not bound to accept it: see, most recently, Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442[2022] 1 WLR 973 (although the court was divided over whether it was necessary to cross-examine an expert before challenging their evidence). In a handwriting case, for example, where the issue is whether a party signed a document a judge may prefer the evidence of a witness to the opinion of a handwriting expert based on stylistic comparisons: Kingley Developments Ltd v Brudenell [2016] EWCA Civ 980.
    1. Tribunals are free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense. Whether any positive significance should be attached to the fact that a person has not given evidence, or to the lack of contemporaneous documentation, depends entirely on the context and particular circumstances: Royal Mail Group Ltd v Efobi [2021] UKSC 33[2021] 1 WLR 3863.
Trial
    1. The judge conducted a four-day trial, in the course of which he heard live evidence from witnesses who were cross-examined; and he also had expert evidence from document examiners on the question whether certain signatures, purportedly made by Matteo Volpi, were genuine. There was, however, little contemporaneous documentary evidence which, the judge said, had made his fact-finding task more difficult. Any trial judge will have been faced with the task of trying to do a jigsaw puzzle when some of the pieces are missing; and many of the others do not precisely fit together.
  1. In evaluating the evidence adduced at trial a judge will consider not only the live evidence called before him and contemporaneous documents but also the inherent probabilities of each side’s case. The judge observed at [52] that the contemporaneous documents (such as they were) and inherent likelihoods were “particularly important”.

THE RESULT IN THIS CASE

The appeal was not successful.

 

Conclusion and result

    1. This appeal demonstrates many features of appeals against findings of fact:
i) It seeks to retry the case afresh.
ii) It rests on a selection of evidence rather than the whole of the evidence that the judge heard (what I have elsewhere called “island hopping”).
iii) It seeks to persuade an appeal court to form its own evaluation of the reliability of witness evidence when that is the quintessential function of the trial judge who has seen and heard the witnesses.
iv) It seeks to persuade the appeal court to reattribute weight to the different strands of evidence.
v) It concentrates on particular verbal expressions that the judge used rather than engaging with the substance of his findings.
    1. I re-emphasise the point that it is not for an appeal court to come to an independent conclusion as a result of its own consideration of the evidence. Whether we would have reached the same conclusion as the judge is not the point; although I am far from saying that I would not have done. The question for us is whether the judge’s finding that the money was a loan rather than a gift was rationally insupportable. In my judgment it was not. In my judgment the judge was entitled to reach the conclusion that he did. I would dismiss the appeal.