Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 43
Drawing upon Fage UK Ltd v Chobani UK Ltd
[2014] EWCA Civ 5 and Prescott v Potamianos [2019]
EWCA Civ 932, Stuart-Smith LJ emphasised that
the appellate court does not undertake the factual
balancing exercise afresh. The issue is not whether
the appellate judges might themselves have reached
a di昀昀erent view. The question is whether the trial
judge’s decision was undermined by an identi昀椀able
昀氀aw, such as a gap in logic, an inconsistency or a
failure to take account of a material factor.
addresses for those who had left. The Court of
Appeal considered that there was no apparent reason
why the requested information could not have been
provided. It described the Ministry’s response as
a “brush o昀昀” which had two malign e昀昀ects: the
claimant could not cross-examine the witnesses, and
the judge was left to assess the untested statements
which the defendant itself had introduced.
That background considerably weakened the
Ministry’s attempt on appeal to subject those
statements to a minute forensic examination in
search of inconsistencies. A party which chooses to
place hearsay evidence before the court, but does
not call the witnesses or facilitate their attendance,
may face real di昀케culty in subsequently inviting the
court to reject the same evidence as unreliable.
That discipline was decisive. There were features of
the evidence capable of supporting di昀昀erent 昀椀ndings,
but that was not enough. There was evidence from
Ri昀氀emen Green and Peden supporting the judge’s
conclusion that the incident remained play昀椀ghting
and did not involve a concerted attempt to throw the
claimant over the balustrade.
There was a further point of procedural importance.
The trial judge’s 昀椀ndings did not precisely re昀氀ect
either party’s pleaded case. The Court of Appeal
considered that best practice would have been for
the judge to invite further submissions once he had
formulated the 昀椀ndings he was minded to make. The
failure to do so did not justify setting the judgment
aside, because the 昀椀ndings were supported by the
evidence and the exhaustive submissions on appeal
came nowhere near demonstrating that they should
not have been made. Nevertheless, where a judge is
considering a factual route which di昀昀ers materially
from the competing pleaded cases, procedural
fairness may require the parties to be heard.
Green described the two men as laughing and
giggling. He described Graham breaking out of a
headlock, apparently striking the claimant’s arm
during the movement, whereupon the claimant fell
backwards against the balustrade and 昀氀ipped over it.
Peden described a friendly drunken 昀椀ght involving
grappling and shoving. He believed that Graham,
whose face was pressed against the claimant’s
chest, would not have known that they were moving
towards the balustrade.
The Court of Appeal described the case as a classic
example of an incident about which the evidence
was inconsistent and in respect of which it was
the primary function of the trial judge to make
the necessary assessments. The judge had paid
close attention to the evidence and recognised the
inconsistencies. Although di昀昀erent 昀椀ndings might
have been available, the Court was not compelled to
overturn those which he made, “not by a long chalk”.
Credibility, reliability and brain injury
The treatment of the claimant’s evidence is
particularly important in catastrophic injury
litigation.
The claimant had given a number of di昀昀ering
accounts. At various stages, he described missing
a step, falling backwards, being lifted, having his
legs pulled from beneath him, being picked up
and thrown, being pushed from behind and being
pushed in the chest. His orientation to the balustrade
also varied between accounts.
That is a useful reminder of the distinction between
showing that another factual conclusion was possible
and demonstrating that the conclusion actually
reached was wrong. The former is not su昀케cient on
appeal.
The use of hearsay evidence
These inconsistencies entitled the trial judge to
conclude that the claimant was not a reliable witness
as to the mechanism of his fall. They did not require
a 昀椀nding that he was dishonest. The judge found
that the claimant was doing his best to give truthful
evidence but that his recollection had been a昀昀ected
by his injuries and alcohol.
The judgment contains an important procedural
lesson about hearsay evidence.
The Ministry of Defence served statements made by
the soldiers to the service police but did not call the
relevant witnesses. The claimant obtained an order
permitting him to call three of the soldiers for crossexamination and asked the Ministry for their contact
details. The response was that two had left the Army
and the location of the third was uncertain.
That distinction between credibility and reliability
was both humane and legally sound. A witness may
be entirely honest yet unable to provide a dependable
chronology because of post-traumatic amnesia,
cognitive impairment, intoxication, medication or
the ordinary process of memory reconstruction.
Evidence at trial indicated that serving soldiers
could be traced where their regiment and rank
were known, and that the Army retained discharge
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