WITNESS CREDIBILITY AND APPEALS: A COURT OF APPEAL DECISION

In Curran -v- Collins [2015] EWCA Civ 404 the Court of Appeal considered how an appellate court should approach issues of witness credibility.  It is an example of a court dealing with a witness who, the judge finds, has “convinced themselves” that they are telling the truth. The case shows the very high burden on someone appealing on the issue of witness credibility.

KEY POINT

“…any appellant who challenges the judge’s finding on credibility has a particularly difficult task”

THE CASE

The claimant brought an action claiming a share in various properties owned by the defendant. The claimant’s actions were dismissed at trial. The claimant appealed.

THE ISSUES RELATING TO WITNESS CREDIBILITY

Part of the appeal relating to issue of law in relation to express agreements and common intention.  However here we look at the judgment in relation to witness credibility, set out in the judgment of Lady Justice Arden.

APPEALING FINDINGS OF FACT

i) The failure at trial largely turned on the judge’s view of the facts. As I explain below, the appellate court’s powers in relation to those findings is limited. There is no basis for the court setting aside any of the findings of fact which Ms Curran challenges.

THE JUDGE’S FINDINGS AS TO CREDIBILITY

“Parties’ credibility as witnesses

  1. The judge made important findings as regards the parties’ credibility.
  2. The judge found that Ms Curran gave evidence in a “completely open and frank way” and was perfectly satisfied that the evidence given was what Ms Curran “honestly and passionately believed to be the truth” (Judgment, para.55). However, the judge noted that there were two ways in which an individual’s evidence could be unreliable while being entirely honest – either because of the way they feel about the facts or because of their tendency to express themselves without precision. The latter issue was, in the judge’s view, demonstrated in Ms Curran’s evidence when Ms Curran stated in cross examination that she had “done all of the paperwork” for the Business, when she had not (Judgment, paras. 56 and 57). The judge said that she accepted that all she had done was to attend to the registration of the dogs. Mr Collins had done the accounting records and tax returns.
  3. The judge found that Mr Collins was intelligent and capable of being very calculating, and stated that she approached his evidence with caution (Judgment, para. 60). The judge found Mr Collins’s ability to say different things at different times and to be inconsistent, particularly in relation to financial matters, meant she looked at his evidence with “extreme caution” (Judgment, para. 65). Despite this, the judge concluded that she preferred Mr Collins’ account of events to that of Ms Curran (Judgment, para. 71).”

COURT OF APPEAL JUDGMENT ON THE ISSUE OF CREDIBILITY

(i) Judge wrong to discount Ms Curran’s evidence/ prefer that of Mr Collins

  1. Miss Crowther, for Ms Curran, submits that the judge misunderstood Ms Curran’s oral evidence and wrongly concluded that she was unreliable. The judge held that Ms Curran had not been precise or accurate at times in her evidence and criticised her loose use of language. The sole example the judge gave to support her finding was an assertion by Ms Curran that she had done all of the paperwork in relation to the Business but, Ms Crowther contends, this is not substantiated by the transcript. This shows that Ms Curran was entirely consistent in her evidence, stating she had done some administrative work in addition to the dog-breeding aspect of the Business. When it was put to her in cross-examination that Mr Collins did all the paperwork, she stated that this was not true and that she did some as well.
  2. Ms Crowther submits that the judge had no rational basis for discounting Ms Curran’s evidence in the circumstances. She complains that the judge had formed a negative view of her evidence even before she had finished giving evidence. The judge intervened in the cross-examination and wrongly summarised her evidence, causing Ms Curran to apologise for something that she did not say.
  3. Ms Crowther submits that the judge’s finding about Mr Collins’ lying about financial affairs vitiates her reliance on his evidence in her judgment, since it was inconsistent for her to accept Mr Collins’ evidence where it differed from that of Ms Curran in those circumstances.
  4. Mr Donald McCue, for Mr Collins, submits that the judge explains why the judge found that Ms Curran’s evidence was not credible. She had strong emotions causing her to be overemphatic. He submits that an appellate court should be slow to overturn the factual findings of a trial judge. In terms of reliability, the judge held that Ms Curran was unreliable. She had convinced herself and made sincere errors.
  5. The evidence over the keeping of books was an instance of her unreliability. She initially said that she did the administration and the books. She later accepted that Mr Collins kept the account books. What she meant was that she did the paperwork for registering the dogs. Mr McCue says that this is instance of Ms Curran’s inexactitude.

My conclusions

  1. As I held in Langsam v Beachcroft LLP [2012] EWCA Civ 1230:

It is well established that, where a finding turns on the judge’s assessment of the credibility of a witness, an appellate court will take into account that the judge had the advantage of seeing the witnesses give their oral evidence, which is not available to the appellate court. It is, therefore, rare for an appellate court to overturn a judge’s finding as to a person’s credibility. Likewise, where any finding involves an evaluation of facts, an appellate court must take into account that the judge has reached a multi-factorial judgment, which takes into account his assessment of many factors. The correctness of the evaluation is not undermined, for instance, by challenging the weight the judge has given to elements in the evaluation unless it is shown that the judge was clearly wrong and reached a conclusion which on the evidence he was not entitled to reach. In other cases, where the finding turns on matters on which the appellate court is in the same position as the judge, the appellate court must in general make up its own mind as to the correctness of the judge’s finding (see Datec Electronic Holdings v United Parcels Service [2007] UKHL 23, [2007] 4 All ER 765, [2007] 1 WLR 1325 at 46 per Lord Mance).

  1. Thus any appellant who challenges the judge’s finding on credibility has a particularly difficult task. In this case, the appellant seeks to overcome the difficulty by asserting that the judge’s finding was unsubstantiated or inconsistent or inadequately reasoned.
  2. In my judgment, the judge was entitled to find that the appellant gave an inaccurate statement when she said that she did the paperwork for the Airedales. Her answer completely omitted the accounts that had to be kept. I prefer Mr McCue’s interpretation of the transcript. Ms Crowther did not pursue any suggestion that the judge had improperly intervened in the cross-examination of Ms Curran.
  3. The judge’s finding on Mr Collins’ credibility envisaged that she should have to exercise caution when considering his evidence. That meant that she would on some matters accept and some reject it. That does not amount to inconsistency. There is no suggestion that her acceptance or rejection of his evidence was against the weight of the evidence so that it was not open to her. The judge was not for this reason wrong to accept Mr Collins’ evidence at times in her judgment.
  4. I would therefore reject this ground of appeal.”

OTHER POSTS ON WITNESS CREDIBILITY

This issue is also discussed in a number of other posts.

1. Litigators must know about credibility.

2. Witness Statements and Witness Evidence: More about Credibility.

3. Which Witness will be believed?Is it all a lottery?

4. The witnesses say the other side is lying: What does the judge do?

5. Assessing the reliability of witnesses: How does the judge decide?

6.  Which witness is going to be believed? A High Court case.

7. The Mitchell case and witness evidence: credibility, strong views and reliability.

8. Witness statements and witness credibility: getting back to basics

9. Witness credibility: what factors does the Court look at?

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