More notable extracts from judgments following on from an earlier post Trip Down Judgment Lane:
Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 in which the matter of appeals on the grounds of findings of fact was cautioned:
Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so….The trial is not a dress rehearsal. It is the first and last night of the show.
Sutton v Hutchinson [2005] EWCA Civ 1773 which considered inter alia an unorthodox invitation:
LORD JUSTICE WARD: The appellant is a lap dancer. I would not, of course, begin to know exactly what that involves. One can guess at it, but could not faithfully describe it. The Judge tantalisingly tells us, at paragraph 21 of his judgment, that the purpose is “to tease but not to satisfy“…. Having been tempted, he managed to obtain her telephone number and invited her to dinner. It was not exactly the traditional boy meets girl, “Let’s have dinner, darling” kind of invitation.
The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 in which credibility came up for consideration:
He entered the box as an articulate professional with impressive academic credentials, displaying what appeared to be a sound and comprehensive recollection of events. When he stepped down, after more than 14 days of withering cross-examination, he was noticeably dazed, his credibility was reduced to existential confetti and he even appeared to be physically shorter than when the trial began.
Walker Morris v Khalastchi [2001] 1 BCLC in relation to obtaining your files created by your professional advisers acting as agent:
“…The starting point is that the files are the property of the Company, and the liquidator is entitled to possession of them. The applicants have no right whatsoever to withhold them.”
A (Children), Re [2015] EWCA Civ 133 involved the Court of Appeal deprecating another judge:
Mr Saunders and Ms Roberts valiantly tried to explain to the judge what they sought and why they sought it, only to be met with evermore intemperate responses from the judge. In relation, for example, to the cost of the DNA testing, Ms Roberts told the judge that Legal Aid would paid for it. The response was, “You can pay for it if you want, I will let you. In fact, I am half minded to make an order that you do so”. Judge Dodds continued, “If she (meaning SA) told you that the moon is made of green cheese will you say, ‘Yes, S, no, S, three bags full S?” He continued: “The lunatics have truly taken over the asylum” and “For heaven sake, in this day and age especially, just because the lunatic says, ‘I want, I want’, you do not have to respond by spoon feeding their every wish”. The judge went on to comment, “Can I tell you how bitterly resentful I am at how much of my Saturday I spent reading this codswallop”.
Finally, the judge in dealing with the actual application said, “There is not a syllable of evidence before me to warrant making the order you seek and so it is refused”.
He went concluded:
“At lest there be a nanosecond’s doubt as to the application for an order under section 55A of the Family Law Act 1986, I am nothing short of appalled that it was thought that public funds could be expended upon such nonsense. And I tell you I am within a hair’s breadth of ordering that any costs incurred in respect of that application should be paid by you.”
I agree. The transcript of the hearing makes embarrassing reading and I hope that Judge Dodds will read it for himself and be ashamed of his behaviour on that particular occasion. Appointment as a judge, at whatever level, is not a license for intemperate language or for being gratuitously rude to advocates and others appearing before you. Judge Dodds’ behaviour on that occasion was beyond what is permissible. It meant that there was a serious procedural irregularity. That particular hearing was not fair. I do emphasise that my remarks concern only that one particular hearing. However, this appeal must be allowed.
Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556 in which then Mr Justice Peter Smith had a matter considered by the Court of Appeal:
In his letter to the claimant’s solicitors dated 12th February 2016, the judge accepted that he should not have written the Letter. It is difficult to believe that any judge, still less a High Court Judge, could have done so. It was a shocking and, we regret to say, disgraceful letter to write. It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge. What makes it worse is that it comes on the heels of the BAA baggage affair. In our view, the comments of Lord Pannick, far from being “outrageous” as the judge said in the Letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so. But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed. It is to that question that we now turn.
Serafin v Malkiewicz & Ors [2019] EWCA Civ 852 – Court of Appeal day for Mr Justice Jay; overturned findings of fact and judicial fairness appears to have been germane:
In our view, the Judge not only seriously transgressed the core principle that a judge remains neutral during the evidence, but he also acted in a manner which was, at times, manifestly unfair and hostile to the Claimant. As emphasised in Michel, not all departures from good practice render a trial unfair – ultimately the question is one of degree. Nevertheless, we have carefully considered and reflected upon this matter and are driven to the conclusion that the nature, tenor and frequency of the Judge’s interventions were such as to render this libel trial unfair. We, therefore, uphold the Claimant’s fifth Ground of Appeal.
Quote from transcript: Mr Justice Jay:
…If you are lying to me, the consequences can be really awful, because you understand, I do not like being lied to….
