Appealing the Facts in Regulatory Cases: A Brief Review
The appellant who, on appeal, challenges the facts found by a regulatory tribunal must be prepared for an uphill struggle.
Appellate courts have warned repeatedly in cases at the highest level not to interfere with findings of fact by trial judges unless compelled to do so, and 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[1].
Lewison LJ has explained[2] that the manifold reasons for this approach 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 her/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.
It was also important to have in mind the role of a judgment given after trial.
The primary function of a first instance judge was to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he had acted and the reasons that led him or her to the decision. They need not be elaborate. There was no duty on a judge, in giving reasons, to deal with every argument presented by counsel in support of their case. The judge’s function was to reach conclusions and give reasons to support his or her view, not to spell out every matter as if summing up to a jury. Nor need the judge deal at any length with matters that were not disputed. It was sufficient if the judge showed the basis on which he or she had acted.[3]
When Enemuwe v Nursing and Midwifery Council[4] came before the Administrative Court on appeal for the second time counsel for the appellant argued that the principles set out by Lewison LJ did not establish a general principle of law and that the Fage case did not arise out of regulatory or disciplinary proceedings. Disagreeing, Sir Stephen Silber held that the comments of Lewison LJ showed a general approach which had been applied by the Court of Appeal to other areas such as in a professional negligence appeal[5] and was of universal application when findings of a trial judge or panel were under challenge on appeal. Indeed, there was nothing to show that those comments should not be of general application and no good reason had been put forward or established why they should not be of general application in the instant case.
In a more recent appeal under section 40A of the Medical Act 1983[6], the Divisional Court affirmed that it would correct material errors of fact and law, but any appeal court must be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depended upon the assessment of the credibility of the witness who the Tribunal, unlike the appellate court, had had the advantage of seeing and hearing.
But Sharp LJ added that on the question of what inferences were to be drawn from specific facts, an appellate court was under less of a disadvantage and may draw any inferences of fact which it considered were justified on the evidence. It is respectfully suggested, however, that her Ladyship’s comment should be read in the context of the remarks of Lewison LJ about the whole sea of evidence being available to the trial judge whereas an appellate court would be only island hopping.
[1] Biogen Inc v Medeva plc [1977] RPC1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23 [2007] 1 WLR 1325; Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 [2013] 1 WLR 1911; McGraddie v McGraddie [2013] UKSC 58 [2013] 1 WLR 2477.
[2] Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5
[3] Customs and Excise Commissioners v A [2002] EWCA Civ 1039 [2003] Fam 55; Bekoe v Broomes [2005] UKPC 39; Argos Ltd v Office of Fair Trading [2006] EWCA Civ 1318; [2006] UKCLR 1135.
[5] Watson Farley and Williams (a firm) v Ostrovizky [2015] EWCA Civ 457 [8] per Burnett LJ with whom Arden and Pitchford LJJ agreed.
[6] General Medical Council v Jagjivan & Anor [2017] EWHC 1247 (Admin)