Arkell v Ludlow & Anor

An appellate court will not retry a case or re-weigh conflicting evidence merely because the losing party says the trial judge reached the wrong conclusion. Intervention requires a demonstrated failure in the lower court’s procedure or decision-making process. A litigant in person must be treated fairly, but fairness does not require the judge to reconstruct a party’s case or admit documents that were neither properly introduced nor capable of affecting the result. Where the trial judge understood the case, considered the material and was entitled to choose between competing accounts, permission to appeal should be refused.

The claimant brought a professional negligence claim against his former solicitors and an employee concerning the charging and later sale of two houses. The Canterbury County Court dismissed the claim, finding that negligence was not established, the claim was statute-barred and no relevant loss had been shown. Permission to appeal was refused. The claimant applied to the Court of Appeal out of time, alleging procedural unfairness, misunderstanding of his case and reliance on unreliable defence evidence. The central question was whether there was any realistic prospect of intervention in the trial judge’s process or factual conclusions.

Application refused. The appellant’s notice was out of time, but the delay was relatively short and the claimant was acting in person. That did not prevent consideration of the application on its merits.

1. Appellate restraint. The Court of Appeal would not re-decide the case on the evidence. Where the trial judge had heard materially conflicting evidence, it would be unfair for an appellate court, which had not heard that evidence, to assume that it could reach a better conclusion. The applicant therefore had to demonstrate a failure in the lower court’s procedure or decision-making process.
2. Procedural fairness. The complaints about the opening, cross-examination and refusal to admit documents reflected the normal procedure followed at trial. Documents relied on by a litigant in person should ordinarily be introduced through the party’s evidence or used in cross-examination. The judge’s task was to maintain fairness to both the unrepresented claimant and the represented defendants. Having examined the documents, the court concluded that none was of critical importance and that there was no realistic prospect that their admission would have altered the result. There had been no unfair trial or denial of an opportunity to present the case.
3. Understanding and assessment of the case. The trial judge had understood the claimant’s allegations but had rejected his account and accepted relevant parts of the defendants’ evidence. The complaints about reliability had been matters for the trial judge and had been taken into account. The claimant’s disagreement with the conclusions did not justify appellate intervention.

There was consequently no realistic prospect of a successful appeal. The application for permission to appeal was refused.

1. Court of Appeal (Civil Division). The application for permission to appeal was considered on its merits and refused.
2. Canterbury County Court. His Honour Judge Poulton dismissed the professional negligence claim on 13 November 2000 and refused permission to appeal. The claim had previously been reinstated after an earlier strike-out.