Gillett v Hygrade Foods Ltd

An appellate court should not interfere with a trial judge’s findings of fact where the evidence was carefully considered and the judge gave clear, detailed reasons. A judge may assess documentary evidence together with the remaining evidence and may conclude that missing documents resulted from loss rather than deliberate concealment. Independent witness evidence may provide a sufficient basis for a finding, even where documentary evidence is incomplete. Permission to appeal should be refused where the proposed challenge has no realistic prospect of showing that the factual conclusions were impermissible.

Gillett v Hygrade Foods Ltd concerned an application for permission to appeal from a decision of the County Court at Wandsworth on 3 April 2001. The county court dismissed a personal-injury claim arising from the applicant’s fall on a metal staircase at his employer’s factory.

Liability depended principally on whether anti-slip nosings had been fitted before the accident. The applicant argued that the recorder had failed properly to assess missing documentation and had wrongly approached allegations that the respondent concealed evidence. The central issue was whether the recorder had been entitled to make and rely upon his factual findings.

1. Application refused. The Court of Appeal, per Lord Justice Kay, held that the proposed appeal had no realistic prospect of success. The recorder had carefully reviewed the evidence and given detailed and persuasive reasons for concluding that the anti-slip nosings were in place before the accident.
2. The recorder was entitled to consider both the documentation and the remainder of the evidence. He could find that there had been no deliberate concealment, while accepting that relevant documents had been lost in circumstances that could not be established. The absence of documents did not require an inference of dishonesty.
3. The court emphasised the difficulty of challenging factual findings on appeal, particularly where the alleged challenge involved an accusation of fraudulent concealment. There was no proper basis for concluding that the recorder had adopted an impermissible approach or had failed to consider the material evidence.
4. The evidence of Mr Halpin was a freestanding basis for the conclusion. His recollection that the nosings were fitted before he left the company was independent of the documentation and was accepted by the recorder. Any possible error concerning the source of the flooring did not undermine the value of his evidence about its presence.
5. The order was: application refused, with detailed assessment of the applicant’s costs.

• Court of Appeal (Civil Division): Application for permission to appeal refused. Gillett v Hygrade Foods Ltd had arisen from the county court’s dismissal of the personal-injury claim.
• County Court at Wandsworth: On 3 April 2001, His Honour Mr Recorder Widdup dismissed the claim after finding that the anti-slip nosings were in place before the accident.