Ashraf v Akram

A trial judge must try to resolve disputed facts and must not avoid the issues merely to protect the parties’ interests. In the exceptional case, however, an honest evidential impasse may leave the judge unable to decide which of two exclusive accounts is more probable. If the claimant’s case depends on proving one account and that account is not established on the balance of probabilities, the claim fails; the judge need not choose arbitrarily between alternatives. Where a defendant’s counterclaim is waived, it may be dismissed without further factual findings. A judge cannot alter an interlocutory costs order, particularly without notice and an opportunity to be heard, simply to produce a no-score outcome.

The appeal arose from a claim and counterclaim following a fight between members of the same mosque community. The trial judge found that the evidence did not enable him to decide whether the claimant’s son or the defendant had started the physical confrontation. He therefore dismissed both the claim and counterclaim.

The claimant appealed, arguing that the judge was required to make findings of fact and should have considered whether elements of truth lay in each account. A further issue concerned the judge’s decision to entertain an out-of-time appeal from a District Judge’s interlocutory costs order and set that order aside without warning the claimant. The central questions were whether the evidential uncertainty justified dismissal of the claim and counterclaim, and whether the costs order could lawfully be displaced.

Disposition. Chadwick LJ, with Sedley LJ agreeing, dismissed the substantive appeal on liability. The appeal was allowed only in relation to the interlocutory costs order, which was restored. Costs were ordered against the Legal Aid Board, subject to its opportunity to apply to vary the order within 10 weeks.

1. Duty to decide factual issues. A judge must make findings of fact wherever practicable and must not use the burden of proof as an easy means of avoiding decision. The authorities nevertheless recognise a limited exceptional class in which an intractable evidential tangle leaves a conscientious judge genuinely unable to decide; this was the principle applied from Morris v London Iron and Steel Co [1988] 1 QB 493.
2. Binary alternatives. The evidence here left the essential issue between two possibilities: the claimant’s son had started the fight, or the defendant had started it or used more than reasonable force in self-defence. The claimant’s case depended on establishing the latter account. Since the judge was not persuaded that it was more probable than not, dismissal of the claim was proper.
3. Third possibilities. A judge must consider whether the evidence supports an intermediate account, such as responsibility shared between the parties. Bray v Palmer [1953] 1 WLR 1455 required a retrial where that possibility had not been considered. No third account emerged here, and the judge was not required to invent one or choose arbitrarily between the two accounts. The case was therefore materially different from the expert-evidence dispute in Sewell v Electrolux Ltd The Times, 7th November 1997.
4. Counterclaim. The defendant’s counsel had accepted that, if the judge could not find for the claimant, the defendant would not press for success on the counterclaim. The judge was therefore entitled to dismiss it without deciding whether the claimant had assaulted the defendant.
5. Costs order. The Circuit Judge had no proper basis for taking an out-of-time appeal from the District Judge’s interlocutory costs order, without giving the claimant notice or an opportunity to respond, and setting it aside merely to achieve a no-order costs result. That part of the order was plainly wrong and had to be reversed.

1. Court of Appeal (Civil Division): In [1999] EWCA Civ 640, the substantive appeal was dismissed. The appeal was allowed only in relation to the setting aside of the District Judge’s interlocutory costs order.
2. Newport County Court: On 28 April 1998, the claim and counterclaim were dismissed after the trial judge concluded that neither side had proved its case. The judge also directed that there be no order as to the costs of the District Judge’s hearing.
3. District Judge: On 29 January 1998, the defendant had been ordered to pay the claimant’s costs of the unsuccessful interlocutory application to strike out the action for abuse of process.