Young v Smart

An appellate challenge to a trial judge’s findings of fact requires a high degree of cogency and a realistic prospect of showing that the findings are wrong. The Court of Appeal assesses the judgment as a whole, including the judge’s assessment of witness reliability and documentary evidence. A possible error in a subsidiary calculation is insufficient unless it is shown to be a false premise which materially vitiates the overall findings. A costs challenge will generally not provide an independent basis for permission where permission on the substantive issue is unavailable.

The counterclaiming defendant, a property development company run by Mr Smart, sought permission to appeal from a judgment of His Honour Judge Hywel Moseley QC in the Technology and Construction Court in Cardiff. The counterclaim alleged negligent valuation and development advice by Mr Young, a surveyor, and claimed loss of a more profitable development opportunity. The judge found that no actionable advice had been given and that there had been no reliance. He dismissed the counterclaim and ordered indemnity costs.

The proposed appeal alleged that the judge had misread the evidence, introduced an unargued reasoning path, and relied materially on an erroneous 24 per cent valuation calculation. Permission was sought on liability and costs. The central question was whether those criticisms disclosed a realistic prospect of overturning the judge’s factual findings.

Lord Justice Sedley refused permission to appeal and ordered the intended respondent’s costs of preparing written submissions in reply.

1. Challenge to factual findings. An applicant seeking to overturn a trial judge’s findings of fact must meet a high standard of cogency and show a realistic prospect of success. The appellate court must read the judgment as a whole. It should respect the trial judge’s primary role in deciding which witness and documentary account is reliable, unless objective evidence or an admission makes the contrary conclusion inexorable.
2. Application to the evidence. The trial judge had good evidence for finding that the August 1995 letter was directed to the bank rather than Mr Smart, and that it was not relied upon by him. The judge was also entitled to reject the late assertion that actionable oral advice had been given in November or early January, where the evidence consisted substantially of Mr Smart’s unsupported assertion.
3. Alleged valuation error. Even assuming that the 24 per cent calculation involved a misunderstanding of the underlying data, the error did not realistically appear to vitiate the judgment as a whole. It was not shown to be a false premise on which the totality of the findings necessarily depended. The applicant could not retain favourable parts of the evidence while avoiding the adverse finding that his account of the earlier conversations was wholly unconvincing.
4. Costs. The challenge to the indemnity costs order was not a viable ground in the absence of permission on liability. The amount of costs, although substantial, did not independently justify permission.

1. Court of Appeal (Civil Division) ([2001] EWCA Civ 1583, 10 October 2001): Lord Justice Sedley refused permission to appeal and ordered the intended respondent’s costs of preparing written submissions in reply.
2. Technology and Construction Court, Cardiff: His Honour Judge Hywel Moseley QC dismissed the counterclaim for negligent valuation advice and ordered indemnity costs.