Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and fact. While a judge’s findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable, an appellate court would be more ready to differ from the judge’s evaluation of those facts by reference to some legal standard such as negligence or obviousness. In drawing this distinction, the court, observed that it was ‘subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge’ and ‘I cannot help thinking that some confusion may have arisen from a failure to distinguish between a finding of a specific fact and a finding of fact which is really an inference from facts specifically found or, as it has sometimes been said, between the perception and evaluation of facts.’
Robert Goff LJ said: ‘It is implicit in the statement of Lord Macmillan in Powell v Streatham Nursing Home at p 256 that the probabilities and possibilities of the case may be such as to impel an appellate court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box. Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses always to test their veracity by reference to the documents in the case, and also to pay particular regard to their motives and the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witness’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’
Lord Reid said: ‘it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. But the advantage of seeing and hearing a witness goes beyond that: the trial judge may be led to a conclusion about the reliability of a witness’s memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may be rightly discounted by the trial judge or, on the other hand, he may rightly attach importance to evidence which reads badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have formed a wrong impression, but an appeal court is and should be slow to reverse any finding which appears to be based on any such considerations.’
Viscount Simonds, Robert Goff LJ, Lord Reid
[1955] AC 370, (1955) 72 RPC 39
Scotland
Citing:
Cited – Powell v Streatham Manor Nursing Home HL 1935
Where the Judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal . .
Cited – SS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
Cited by:
Cited – Morgan Grenfell and Co Ltd v Sace – Istituto Per i Servizi Assicurativi Del Commercio CA 19-Dec-2001
The claimants sought to recover under guarantees, issued by the respondent banks, underwriting export credit guarantees. Though described as guarantees, the agreements were in law and substance, contracts of insurance governed by Italian law. The . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Cited – Dingley v Chief Constable of Strathclyde Police HL 11-May-2000
The officer had been injured in an accident in a police van. He developed multiple sclerosis only a short time afterwards. The respondent denied that the accident caused the MS.
Held: There is no proof of what causes MS, but it was common . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .
Cited – Sherrington v Sherrington CA 22-Mar-2005
The deceased, a solicitor of long standing, was said to have signed his will without having read it, and had two witnesses sign the document without them knowing what they were attesting. He had remarried, and the will was challenged by his . .
Cited – Akerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
Cited – PF Sugrue Ltd v The Attorney General PC 14-Nov-2005
PC (New Zealand) The claimant’s helicopter had been seized by the police having been identified as having been used in the course of unlawful hunting of deer. The grounds for the seizure were said to be . .
Cited – Kwasi Bekoe v Horace Broomes PC 31-Oct-2005
PC (Trinidad and Tobago) The appellant defendant was an attorney-at-law, and the respondent a senior magistrate who was said to have accused the claimant of having given a bribe. The appellant challenged the . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Cited – Carapeto v William Marsh Good and others CA 20-Jun-2002
Reltives of the deceased had challenged the will, alleging undue influence and lack of capacity. They sought leave to appeal the grant of probate of the will.
Held: The appeal had no realistic prospect of success. . .
Cited – H, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .
Cited – Alford v Cambridgeshire Police CA 24-Feb-2009
The claimant police officer had been held after an accident when he was in a high speed pursuit of a vehicle into the neighbouring respondent’s area. The prosecution had been discontinued, and he now appealed against rejection of his claims for . .
Cited – Charania v Harbour Estates Ltd CA 27-Oct-2009
The defendant appealed against the award of the estate agent’s fees, acting under a sole agency agreement. The agreement had been terminated. A buyer who had seen the property first under the agency later returned and negotiated a purchase.
Cited – The Queen v Crawford PC 11-Nov-2015
From the Court of Appeal of the Cayman Islands – The crown appealed against the quashing of the respondent’s conviction for possession of an unlicensed firearm. A gun was found where he had been seen to discard a gun whilst being chased. The . .
Cited – Wooldridge v Sumner and Another CA 4-Jun-1962
The plaintiff photographer was injured when attending a show jumping competition at the White City Stadium. A horse caught him as it passed.
Held: The defendant’s appeal against the finding of negligence succeeded: ‘a competitor or player . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Leading Case
Updated: 09 November 2021; Ref: scu.180965
