References: [2002] 2 Lloyd’s Rep 293, [2002] EWCA Civ 509, [2002] 2 All ER (Comm) 97
Links: Bailii
Coram: Mance LJ, Thorpe LJ, Neuberger J
Where the correctness of a finding of primary fact or of inference is in issue (on appeal), it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. The appellate court should not interfere with a judge’s findings of primary fact where they are based on oral evidence unless it is satisfied that the judge was plainly wrong.
Mance LJ said: ‘Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge’s conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence.’
Statutes: Fishing Vessel (Safety Provisions) Rules 1975 (SI 1975 No. 330) 16
This case cites:
- Cited – X (Minors) -v- Bedfordshire County Council; M (A Minor) and Another -v- Newham London Borough Council; Etc HL (Independent 30-Jun-95, Times 30-Jun-95, [1995] 2 AC 633, Bailii, [1995] UKHL 9, [1995] 2 FLR 276, [1995] 3 All ER 353, [1995] 3 WLR 152, [1995] 3 FCR 337)
Damages were to be awarded against a Local Authority for breach of statutory duty in a care case, only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give . .
This case is cited by:
- Cited – Merer -v- Fisher and Another CA (Bailii, [2003] EWCA Civ 747)
A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . . - Cited – Rowland -v- The Environment Agency CA ([2003] EWCA Civ 1885, Bailii, Times 20-Jan-04, Gazette 26-Feb-04, [2004] 3 WLR 249, [2005] Ch 1)
The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . . - Cited – Agulian and Another -v- Cyganik CA (Bailii, [2006] EWCA Civ 129)
The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
Held: He had retained his domicile of birth: . . - Cited – London Borough of Lewisham -v- Malcolm and Disability Rights Commission CA (Bailii, [2007] EWCA Civ 763, [2008] 2 WLR 369, [2008] Ch 129, [2008] L & TR 4, [2008] HLR 14, [2007] 32 EG 88, [2008] BLGR 189)
The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . . - Cited – Morrison Sports Ltd and Others -v- Scottish Power SC (Bailii, [2010] UKSC 37, WLRD, [2010] WLR (D) 202, Bailii Summary, SC, SC Summary, [2010] 1 WLR 1934, 2010 SLT 1027)
A fire caused substantial damage to buildings. It arose from a ‘shim’ placed in a fuse box which then overheated. The parties disputed whose employee had inserted the shim. The Act under which the Regulations had been made was repealed and replaced . . - Cited – Fortune and Others -v- Wiltshire Council and Another CA (Bailii, [2012] EWCA Civ 334, [2013] 1 WLR 808, [2012] 3 All ER 797, [2012] 2 P &CR 11, [2012] WLR(D) 90, WLRD, [2012] JPL 1092)
The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .