AC-2024-MAN-000469 - [2025] EWHC 2049 (Admin)

In Byrne v General Medical Council [2021] EWHC 2237 (Admin), Morris J reviewed the principles applicable to a challenge to findings of fact, and distilling them in the following way:

“11.

The issue is as to the circumstances in which an appeal court will interfere with findings of fact made by the court or decision maker below. This is an issue which has been the subject of detailed judicial analysis in a substantial number of authorities and where the formulation of the test to be applied has not been uniform; the differences between formulations are fine. I do not propose to go over this ground again in detail, but rather seek to synthesise the principles and to draw together from these authorities a number of propositions.

12.

First, the degree of deference shown to the court below will differ depending on the nature of the issue below; namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors: Assicurazioni Generali at §§16 to 20…

13.

Secondly, the governing principle remains that set out in Gupta §10 referring to Thomas v Thomas. The starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge’s more general expertise in making determinations of fact: see Gupta, and McGraddie v McGraddie at § §3 to 4. I accept that the most recent Supreme Court cases interpreting Thomas v Thomas (namely McGraddie and Henderson v Foxworth) are relevant. Even though they were cases of “review” rather than “rehearing”, there is little distinction between the two types of cases for present purposes (see paragraph 16 below).

14.

Thirdly, in exceptional circumstances, the appeal court will interfere with findings of primary fact below. (However the reference to “virtually unassailable” in Southall at §47 is not to be read as meaning “practically impossible”, for the reasons given in Dutta at §22.)

15.

Fourthly, the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows: - where “any advantage enjoyed by the trial judge by reason, of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusions”: per Lord Thankerton in Thomas v Thomas approved in Gupta; findings “sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread” per Lord Hailsham in Libman; - findings “plainly wrong or so out of tune with the evidence properly read as to unreasonable” per…Casey at §6 and Warby J (as he then was) in Dutta [v General Medical Council [2020] EWHC 1974 (Admin)] at §21(7); where there is “no evidence to support a ... finding of fact or the trial judge’s finding was one which no reasonable judge could have reached”: per Lord Briggs in Perry after analysis of McGraddie and Henderson. In my judgment, the distinction between these last two formulations is a fine one. To the extent that there is a difference, I will adopt, in the Appellant’s favour, the former…”

In Khan v General Medical Council [2021] EWHC 374 (Admin) at [58]-[65] Julian Knowles J conducted a thorough review of the authorities on the approach the High Court should take to appeals pursuant to section 40. At [65] he observed that notwithstanding the disadvantages that an appellate court has in not having heard witnesses when the Tribunal has done so, Dutta and Lawrence v General Medical Council [2012] EWHC 464 (Admin) were examples of cases where the appellate court nevertheless did overturn findings of fact because of a flawed approach by the Tribunals in question.