Chappell v Butterworth

An appellate court should not interfere with a trial judge’s finding of fact, particularly where it depends on the judge’s assessment of witnesses’ credibility, demeanour and bearing. The court may recognise that a different factual conclusion might have affected the parties’ legal position, but that is insufficient without a proper basis for appellate intervention. Procedural latitude afforded to a litigant in person does not alter this principle.

After an earlier decree based on conduct had been set aside on appeal, the petitioner sought a divorce following five years’ separation. She alleged that the final separation occurred on 28 March 1995. The respondent contended that it occurred on 24 May 1995, relying particularly on a family holiday and diary evidence.

His Honour Judge Ticehurst heard both parties and preferred the petitioner’s evidence, finding that the final separation had occurred on 28 March. The respondent sought permission to challenge that factual finding. The central issue was whether there was any proper basis for the Court of Appeal to interfere with the trial judge’s assessment of the evidence.

The application for permission to appeal was dismissed. There was no order as to costs.

1. The function of determining disputed issues of fact belongs to the trial judge. The Court of Appeal should not interfere, particularly where the finding depends on the credibility, demeanour and bearing of witnesses.
2. The trial judge had heard both parties’ evidence, observed them, and preferred the petitioner’s account of the date of final separation. The respondent’s evidence about the holiday and his diary did not establish any basis for disturbing that assessment.
3. The court understood the respondent’s contention that the petition had technically been issued too early if the later date were accepted. That contention did not justify appellate intervention because the underlying factual finding was one the trial judge was entitled to make.
4. Although latitude is properly afforded to litigants in person and pleading points are not ordinarily taken against them, that procedural consideration did not displace the ordinary limits on appellate review of factual findings.

• Court of Appeal (Civil Division): On 17 July 2001, dismissed the respondent’s application for permission to appeal.
• Gloucester County Court: On 5 June 2001, His Honour Judge Ticehurst found that the parties’ final separation had occurred on 28 March 1995.
• The judgment records that an earlier decree based on conduct had been set aside on a previous appeal because the proceedings at trial were flawed. No citation for that decision was stated.