[2025] UKUT 181 (AAC)

The third ground of review is that the Tribunal failed to take proper account of the impact of the abuse.

I reject that ground, which is essentially an attempt to relitigate the factual findings of the Tribunal. The Tribunal plainly did take into account the trauma and shame of the abuse since it stated in paragraph [15]:

“15.

During the hearing, the Appellant told us that he felt ashamed of the domestic abuse and that it caused a lot of trauma. He told us that he separated out the stabbing from the rest of the abuse and that he was not aware that he was going through domestic abuse until much later. He told us that it was not until he went to Mankind that he appreciated he was the male victim of domestic abuse and that an award of compensation would provide him with justice and clarity. We can accept this up to a point ...)

The precise weight to be accorded to that factor is pre-eminently a matter for the fact-finding Tribunal. Having accorded weight to the impact of the trauma and shame of the abuse it nevertheless went on to find, as it was entitled to do that

“... the difficulty for the Appellant is that he reported a crime of domestic violence to the police in August 2016, some three months after it ended. It is simply not reasonably possible for the Appellant to claim that he was unaware that he was the victim of a crime after reporting it to the police. In our assessment, we thought that the Appellant knew he was the victim of a crime of violence when it was reported to the police.”

The Tribunal then went on to consider the alterative argument that, even though the Applicant had reported the matter as a crime some three years before the claim, his psychological injury arising out of the abuse prevented him from knowing that, even though a crime had been committed, it was not one which might give rise to an award of compensation.

So the Tribunal clearly understood the argument and considered it, but rejected it on the facts in the following paragraph;

“Again, we do not accept that argument. We note that the Appellant had already embarked on a process of claiming for the single stabbing incident; that domestic abuse was mentioned during that claim process; that he would have had access to a copy of the 2012 scheme at that time and that he had access to legal advice during the course of the prior appeal. It seems to us entirely possible that at any point from August 2016 down to October 2019 when the claim was made, the Appellant might have easily been able to find out about domestic abuse and its place within the scheme. Accordingly, we do not accept that his mental health throughout that period prevented him from making a claim for domestic violence.”

To paraphrase the Court of Appeal in Hewes v West Hertfordshire Acute Hospitals NHS Trust [2020] EWCA Civ 1523 at [62] and [64], an appeal is not a wholesale opportunity to revisit, in detail, the Tribunal’s findings of fact, its evaluative assessments, or its mixed findings of fact and law. The Applicant would therefore on any footing have significant obstacles to surmount in this case: it is not enough to persuade the appellate tribunal that a different view of the evidence was possible. It would have to persuade that body that the only possible view was that advocated by him and that is simply not made out.

In this context I do not need to repeat the authorities cited by Mr Moretto, which I have set out in paragraphs 89 to 92 above. It is also important to understand the proper approach of an appellate tribunal such as the Upper Tribunal in determining whether to grant permission to appeal or to allow an appeal from a fact-finding tribunal. That has been explained by the Court of Appeal on numerous occasions, such as in Walter Lilly & Co Ltd v Clin [2021] 1 WLR 2753. In that case Carr LJ said (citations omitted)

“83.

Appellate courts have been warned repeatedly, including by recent statements 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 reasons for this approach are many. They include:

i)

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;

ii)

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

iii)

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;

iv)

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;

v)

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

vi)

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

…

85.

In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows:

i)

Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support;

ii)

Where the finding is infected by some identifiable error, such as a material error of law;

iii)

Where the finding lies outside the bounds within which reasonable disagreement is possible.

86.

An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.

87.

The degree to which appellate restraint should be exercised in an individual case may be influenced by the nature of the conclusion and the extent to which it depended upon an advantage possessed by the trial judge, whether from a thorough immersion in all angles of the case, or from first-hand experience of the testing of the evidence, or because of particular relevant specialist expertise.”

Subsequently Lewison LJ explained in the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 464:

“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.

3.

If authority for all these propositions is needed, it may be found in Piglowska v Piglowski[1999] 1 WLR 1360; McGraddie v McGraddie[2013] UKSC 58, [2013] 1 WLR 2477; Fage UK Ltd v Chobani UK Ltd[2014] EWCA Civ 5, [2014] FSR 29; Henderson v Foxworth Investments Ltd[2014] UKSC 41, [2014] 1 WLR 2600; Elliston v Glencore Services (UK) Ltd[2016] EWCA Civ 407; JSC 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.

…

65.

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.

66.

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.”

I am also satisfied that the Tribunal gave adequate reasons or the conclusions which it reached. It is important to remember what Upper Tribunal Judge Wikeley said in Basildon DC v. AM [2009] UKUT 113 (AAC):

“27.

There is ample authority in the case law about the standards of reasoning expected of fact-finding tribunals in explaining their decisions. There is, for example, a helpful and realistic discussion by Mr Commissioner (now Judge) Rowland in CIB/4497/1998 (at paragraph 5):

‘5. It cannot be overemphasised that there is no simple formula for writing reasons for a decision. The minimum requirements are that the unsuccessful party must know why his or her principal submissions have been rejected and that the process of the tribunal's reasoning must be sufficiently clearly outlined to avoid any reasonable suggestion that the tribunal have made an error of law. Obviously, the more clearly the reasons are expressed in the decision itself the better, but lack of clarity will not render a decision erroneous in point of law if the reasons can nevertheless be discerned with reasonable diligence from the decision and surrounding documents. A statement of reasons may be adequate even though it could have been improved … Those who assert that a tribunal's reasoning is inadequate must themselves explain clearly both the respect in which it is inadequate and why the inadequacy is of significance. It must be borne in mind that there are limits to the extent to which a tribunal is obliged to give reasons for reasons and to the extent to which they can be expected to give reasons for matters of value judgement. Furthermore, it is clear from R(A) 1/72 that it is not obligatory to deal with every piece of evidence and that, while "a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all", that will not always be the case. What is required by way of reasoning depends very much on the circumstances of the particular case before the tribunal.’

28.

It is also well established that when explaining how it has exercised its judgment, a first instance tribunal is not bound to deal with every matter raised in the case. As Tucker LJ explained in Redman v Redman [1948] 1 All ER 333 at 334:

‘I desire to emphasise as strongly as I can that the fact that judge or commissioner does not set out every one of the reasons which actuate him in coming to his decision will not be sufficient to support an argument in this court that he has not applied his mind to the relevant considerations … The mere fact that, in his judgment, the commissioner may not have mentioned some fact or other or that he emphasised some other fact is quite insufficient to persuade me that he did not, in fact, apply his mind properly to the relevant matters which he does not in terms mention.’

29.

Similarly, in a more recent decision in the matrimonial and family jurisdiction, Holman J in B v B (Residence Order: Reasons for Decision) [1997] 2 FLR 602 (at 606) stated that:

‘I cannot emphasise strongly enough that a judgment is not to be approached like a summing-up. It is not an assault course. Judges work under enormous time and other pressures, and it would be quite wrong for this court to interfere simply because an ex tempore judgment given at the end of a long day is not as polished or thorough as it might otherwise be.’

30.

A tribunal’s Statement of Reasons is not usually an ex tempore (unreserved) judgment, but the observations of Holman J. are just as applicable to decisions of fact-finding tribunals as they are to decisions of courts of first instance.

31.

This tribunal made a clear and categorical credibility finding in favour of the claimant which in my judgment is unimpeachable and central to its decision. The credibility finding underpinned the tribunal’s conclusions on the nature of the relationship between the claimant and her landlord and its acceptance of her evidence about e.g. the rental agreement and the payment of rent. That amounted to “clear and overwhelming evidence” which was not undermined by the “unusual” features of the case. The tribunal evaluated the evidence and explained why those factors did not alter its conclusion.

32.

My conclusion therefore is that the tribunal’s decision discloses no error of law in this respect. It is important to read the decision as a whole. I am satisfied that this tribunal applied the correct legal tests, found facts that it was entitled to do on the evidence before it and provided adequate reasoning.”

To that I add what Lord Hope said in Shamoon v. Chief Constable for the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337 at [59]:

“It has also been recognised that a generous interpretation ought to be given to a tribunal's reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.”