Shingari v Hearne & Co

An appellate court should not interfere with findings of fact based on a trial judge’s assessment of witnesses unless the judge misused the advantage of seeing and hearing them, or the conclusion was plainly wrong. A lack of supporting documents, inconsistencies in evidence, or the parties’ differing status does not by itself establish an appealable error. A trial judge need address the principal points raised, but need not deal with every argument. Permission to appeal should be refused where there is no real prospect of success and no other compelling reason for the appeal to proceed.

The claimant paid £105,000 to the defendant solicitors in connection with an agreement to acquire a share in property for a proposed nursing-home venture. The transfer was never completed. In separate proceedings, the claimant recovered the principal sum from one of the other participants, but his claim against the solicitors alleged that they had held the money as trustees or stakeholders and had wrongfully released it.

His claim was dismissed by His Honour Judge Hamilton, sitting as a High Court Judge in the Chancery Division, on 5 July 2001. The claimant applied for permission to appeal, challenging the judge’s assessment of conflicting evidence and his treatment of documentary material.

1. Application dismissed. Lord Justice Peter Gibson found no real prospect of success and no other compelling reason for the proposed appeal to proceed.
2. The decisive issue was factual. The trial judge had heard the claimant and the defendant’s solicitor give conflicting evidence about the terms on which the £105,000 was paid. The Court of Appeal did not have the trial judge’s advantage of seeing and hearing those witnesses.
3. An appellate court should not interfere with findings of fact dependent on witness impressions unless it is shown that the trial judge misused that advantage or was plainly wrong. The claimant’s criticisms of the attendance note, the documentary evidence and the solicitor’s changing accounts did not arguably demonstrate such an error.
4. The judge’s failure to mention every alleged discrepancy did not invalidate the decision. A trial judge must address the principal points advanced, so that the unsuccessful party understands why the case failed, but is not required to deal with every point made during the trial.
5. The Court rejected the suggestion that a judge had improperly preferred a solicitor’s evidence because the opposing witness was not a lawyer. The judge’s duty is to assess the evidence conscientiously and decide which witness is telling the truth.

The application was dismissed. The order dismissing the claim with costs therefore remained undisturbed.

1. Court of Appeal (Civil Division): Application for permission to appeal dismissed.
2. Chancery Division, Birmingham District Registry: His Honour Judge Hamilton dismissed the claimant’s claim against Hearne & Co with costs on 5 July 2001.