Case Note: Brian Lenord v First Manchester Limited  EWHC 982 (QB) (24 April 2020)
The recent judgment of Mr Justice Freedman in Brian Lenord v First Manchester Limited provides further clarification on the circumstances in which an appeal court can properly determine that a decision of a lower court was “wrong”; the judgment focuses in particular on situations where a first instance judge has been required to make an evaluative judgment as to liability based largely on video evidence that is also available to the appeal court.
The factual circumstances of the case concern a road traffic accident: Mr Breadney, a bus driver employed by the Appellant/Defendant, had been proceeding in an Enviro400 bus along a street in the same direction as the Respondent/Claimant, a pedestrian, when another bus approached from the opposite direction. Mr. Breadney had attempted to manoeuvre the Enviro400 bus to allow space for both buses to pass each other. Concentrating mainly on the substantial oncoming obstacle in the road, Mr. Breadney failed to notice the Claimant’s sudden change of direction. An impact resulted between the Respondent/Claimant and the Enviro400 bus, causing the Respondent/Claimant injury.
At trial, a substantial part of the evidence before the court was formed of available CCTV footage of the incident from the Enviro400 bus. Both the Claimant and the bus driver, Mr Breadney, also gave oral evidence – though the former’s evidence was of little assistance as his injuries had caused him to lose all recollection of the event. The trial judge stated the following in his judgment:
“The reality is that this case turns almost exclusively on CCTV footage. The footage is of a very high quality and there were no less than 14 active cameras on the bus, providing both views of the inside of the bus and from various perspectives looking out from the bus. Having viewed carefully all of the relevant footage, it has been possible for me to reconstruct what happened in this case with a high degree of confidence.”
The first instance judge then went on to make an evaluative determination on liability and causation awarding judgment to the Claimant in the sum of two-thirds of the value of his claim. The judge found contributory negligence on the part of the Claimant, it being his evaluation of the Claimant that he had been daydreaming with his head in the clouds and simply not concentrating on the world in front of him.
The Defendant sought to appeal this decision.
Law & Argument:
Pursuant to CPR 52.21(1) an appeal will be limited to “a review of the decision of the lower court” unless it is in the interests of justice to hold a re-hearing (which was not contended for in this case). CPR 52.21(3) makes clear that an appeal court will only allow an appeal where the decision of the lower court was: (a) “wrong”; or (b) “unjust because of a serious procedural or other irregularity in the proceedings in the lower court”.
The sole issue contended by the Appellant was that the trial judge was “wrong” to have reached the conclusion he did as to liability and causation on the available evidence.
The main thrust of the argument advanced by the Appellant was that in circumstances such as these where the first instance judge had concluded that the evidence turned “almost exclusively” on CCTV footage and the same CCTV footage is available to the appellate court, the appellate court is in as good a position as the first instance judge to assess the factual circumstances of the accident and is therefore properly able to form a view of its own as to liability and causation. The Appellant argued that should that view differ from the first instance judge’s view, the appellate court could properly determine that the first instance judge’s decision was “wrong” and should be set aside. The Appellant sought to persuade Mr Justice Freedman of an alternative analysis of the CCTV footage available – an analysis in which the Appellant was blameless.
The Appellant relied on Manning v Styllianou  EWCA Civ 1655 (where photographs available to the trial judge were available to the appellate court) to argue that the appellate court could find a trial judge to be “wrong” where the appeal court was in no worse a position to assess facts than a trial judge. In that case the appellate court concluded based on the photographs, that the trial judge had been wrong to conclude a particular location of a metal stump where the photographs made this clear (the location of the metal stump had been crucial). At paragraph 13, Kay LJ concluded:
“it is with great hesitation that this court should interfere with the conclusion of a trial judge on such a matter. However, I am satisfied that this is not simply a case of taking a different view: it is a case of the judge being wrong about a crucial finding in the case. It is a matter which, with respect, we are in no worse a position to assess, having before us all the material that the judge had before him and which was so influential upon his decision”
The Respondent argued that an important distinction exists between asking an appellate court to determine whether a single, crucial finding of fact has been wrongly made by a trial judge and whether an entire evaluative judgement of all available evidence has been wrongly made. The Appellant was asking the appeal court to determine the latter.
In response to the Appellant’s arguments attention was drawn to a number of significant cases stressing the fairly stringent considerations to be applied when considering whether to allow an appeal on the basis that the trial judge was “wrong”:
-  EWCA Civ 932, in particular paragraph 76: “…on a challenge to an evaluative decision of a first instance Judge, 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 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’“
-  RPC 45, in which Lord Hoffman said the following: “It would in my view be wrong to treat Benmax as authorising or requiring an appellate court to undertake a de novo evaluation of the facts in all cases in which no question of the credibility of witnesses is involved. Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the Judge’s evaluation.”
-  EWCA Civ 5, in which Lewison LJ referred to cases of the House of Lords and Supreme Court “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” citing the following reasons:
“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.
Freedman J was clear that the strictures about being slow to infer with the factual evaluation of the first instance judgement applied in this case as they normally would. Freedman J rejected the Appellant’s submission that the function of an appeal court, even if the case turned solely on video evidence, was to consider that video evidence, form a view, and if that view was different from the trial judge, to substitute the view of the appellate court for that of the trial judge. He noted that the evaluation of liability and causation of the first instance judge had not in fact turned solely on the CCTV footage (Mr. Breadney having given evidence) but stated at paragraph 34 that even if it had and he had formed a different view then:
“absent a gap in logic, a lack of consistency or a failure to take into account some material factor undermining the cogency of the conclusion, the appellate court could not interfere unless it came to the view that the decision was “wrong”. It would not suffice that the appellate court might have arrived at a different decision.”
Freedman J distinguished the case from the circumstances of Manning v Styllianou relied upon by the Appellant, highlighting that this was not a case where a “demonstrable factual error at the heart of the findings” could be pointed to. Rather, it was a case dependant on evaluative judgment. The conclusion of the trial judge was one which was available to him – no ‘gap in logic, lack of consistency or a failure to take into account some material factor undermining the cogency of the conclusion’ had been made out by the Appellant. On that basis, Freedman J firmly concluded that it was not appropriate for him to carry out a fresh evaluation of the circumstances of the collision from the CCTV footage and dismissed the appeal.
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