CH-2025-000012 and CH-2025-000014 - [2025] EWHC 2697 (Ch)

Most of the Grounds of appeal and cross-appeal that are advanced in the present case relate to determinations of questions of fact on the part of the Judge as a trial judge. She had the benefit of seeing the witnesses and considering the documents in the context of the trial and in the light of how they might have been put to witnesses. It is for these reasons that an appeal court must act with extreme caution in interfering with the factual findings of a trial judge and will only do so where the judge is plainly wrong and has reached conclusions on the evidence that no reasonable judge could have reached.

I was referred to a number of authorities, but the correct approach was helpfully and succinctly summarised in by Lewison LJ in Volpi v Volpi [2022] EWCA Civ 464, at [2]-[5]. To quote therefrom at [2]:

“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.”

I turned to consider the various issues that are raised by the appeal and cross-appeal. I broadly do so in the order in which they were argued.