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In McGraddie v McGraddie & Anr [2013] UKSC 58 the Supreme Court confirmed that matters of credibility and reliability of witnesses were pre-eminently a matter for the judge at first instance and that an appellate court should not generally interfere with that judge’s findings in fact.

Law

The House of Lord decisions in: Clarke v Edinburgh & District Tramways Co Ltd 1919 SC HL 35 and Thomas v Thomas 1947 SC (HL) 45 establish that a trial judge is in a superior position, having seen and heard the witnesses, to form a conclusion as to the credibility and reliability of those witnesses. As such an appellate court should only interfere with such a conclusion if it is satisfied that the trial judge was plainly wrong. The test is outlined in Hamilton v Allied Domecq plc [2007] CSIH 74, being where the“findings of fact are unsupported by the evidence and are critical to the decision of the case”.

Facts

In 2005, Mr McGraddie asked his son, the defender, to help him purchase a house in Scotland. His son obliged and found a newly built flat in Glasgow. Mr McGraddie Snr transferred the funds to his son and the house was purchased. However the son arranged for title to be taken in his name rather than his father’s. In 2007 Mr McGraddie gave his son a cheque for £285,000 which the son used to help fund the purchase of a second property in Stewarton, and again title was taken in the son’s name.

Later in 2007 Mr McGraddie Snr became aware that he did not own the properties and raised proceedings, arguing that his son had acted without his authority in taking title for himself.  His son maintained that his father had instructed him to take title to the first property, and that the cheque had simply been a gift which he and his partner had been free to put towards buying the second property.

The case came before Lord Brodie at first instance. Lord Brodie preferred the father’s evidence and found in his favour, noting that he did not find “any other evidence to materially undermine the specifics of the [father’s] account or his evidence more generally”.  On appeal, the Scottish appeal court (the Inner House) concluded that there was such evidence and held that Lord Brodie had been “plainly wrong” in preferring the father’s evidence to that of his son.

Decision

The Supreme Court overturned the appeal court decision. Lord Reed concluded that of the eight aspects of evidence highlighted by the Inner House as undermining the father’s account, only four had been of substance – and they had all been considered by Lord Brodie.

Lord Reed further noted that the Inner House had failed to consider the father’s evidence in the context of the evidence presented in the case as a whole and that they had failed to scrutinize the evidence of the defender in the same manner – a failing which was attributed to the “telescopic nature” of appeals, and cited as a clear reason why appellate courts are not in a “favourable position to assess and determine factual matters”.

Comment

This decision certainly supports the advice often given to a client contemplating an appeal that an appeal on the facts will almost always have limited prospects of success (especially insofar as one seeks to challenge the first instance judge’s assessment of witness credibility and reliability).

That is not to say though that such an appeal will never succeed; Lord Reed, in explaining the justification for the appeal, notes that there have been recent cases where the appellate court has overturned an initial finding in fact e.g. In the matter of B (a Child) [2013] UKSC 33, another Supreme Court decision from earlier this year.

However McGraddie makes clear that such cases are exceptional. An appeal on the facts is only likely to be successful where a critical finding in the case is not supported by the evidence. Having not heard the evidence at first instance, an appellate court is simply not going to be in possession of the information it would require to find that a first instance judge’s assessment of witness credibility was plainly wrong.

 

This piece was originally posted by Brodies LLP here.