KA-2024-BHM-000008 - [2025] EWHC 2093 (KB)

Appeals on findings of fact

The relevant principles are set out in the judgment of Coulson LJ in Wheeldon Bros Waste Ltd v Millenium Insurance Co Ltd [2018] EWCA Civ 2403; [2019] 4 WLR 56, at paragraphs 7-10:

“The general approach of an appellate court to appeals on questions of fact was memorably summarised by Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26. In para 114, he said:

“Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1977] RPC1, Piglowska v Piglowski [1999] 1 WLR 1360, Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325, In re B (A Child) (Care Proceedings: Threshold Criteria [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] 1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include:

The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.

The trial is not a dress rehearsal. It is the first and last night of the show.

Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.

In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”

8 Shortly thereafter, in Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600, Lord Reed JSC said, at para 67:

“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”

9 Although I was referred to a number of other cases dealing with the proper approach of an appellate court to appeals based on matters of fact, the only other authority to which reference should be made is Grizzly Business Ltd v Stena Drilling Ltd [2017] EWCA Civ 94. Longmore LJ said, at paras 39–40:

The parties were broadly agreed upon the relevant law in the light of the recent Supreme Court decisions of Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 and McGraddie v McGraddie [2013] 1 WLR 2477 the laer of which cited with approval Hamilton v Allied Domecq plc [2006] SC 221, para 85. In the latter case it was said: ‘If findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance.’ … We have also had regard to the last three reasons why appellate courts are warned not to interfere with findings of fact unless compelled to do so as enumerated by Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 …

There will be (and have been) rare cases where an appellate court is compelled to set aside findings of fact made by an experienced trial judge but we are far from convinced that that is the case here. None of the challenged findings can be said to be unsupported by the evidence and the decision is certainly not one that no reasonable judge could have reached. The case was not an easy one for the judge but he grappled with all the potential difficulties of the evidence and came to a conclusion which, we feel able to say (although our own opinion is immaterial) was probably correct.”

10 In short, to be overturned on appeal, a finding of fact must be one that no reasonable judge could have reached. In practice, that will usually occur only where there was no evidence at all to support the finding that was made, or the judge plainly misunderstood the evidence in order to arrive at the disputed finding.”