Takenaka (UK) Ltd & Anor v Frankl

An appellate court should not interfere with a trial judge’s finding of fact merely because the evidence admits competing interpretations. Where the judge has explained the conclusion, relied on properly admitted evidence, and reached a firm view on the balance of probabilities, an appellant must identify a material error in the evaluation or a conclusion that the evidence could not support. New points available at trial, unsupported by new evidence, ordinarily provide no proper basis for allowing an appeal. Expert evidence may properly be decisive where the subject matter lies beyond ordinary judicial knowledge.

The claimants alleged that the defendant had sent three defamatory e-mails from a computer in Turkey. The High Court, presided over by His Honour Judge Alliott, accepted expert computer evidence linking the e-mails to the defendant and found that he had sent them.

The defendant sought to challenge that factual conclusion on the evidence, including alleged anomalies in computer timings, the identity of the computer, and new points raised for the first time on appeal. The central issues were whether the trial judge had adequately explained his conclusion and whether the evidence justified appellate intervention.

1. Application dismissed. The Court of Appeal found no real prospect that the defendant could overturn the trial judgment.
2. Per Lord Justice Mance, the trial judge was required to assess the evidence as a whole and decide the overall balance of probabilities. He was entitled, in principle, to conclude that the evidence left him uncertain, in which event the claimants would have failed. In fact, having heard the expert and the defendant, he reached a firm conclusion that the defendant sent the e-mails.
3. The computer evidence was powerful and coherent. It linked the e-mails to the computer and connected the defendant with the relevant accounts and timings. The alternative theory that another person had planted extensive material to incriminate the defendant required an extraordinary and highly improbable scheme. The alleged timing anomaly was a matter for the judge to weigh, but it did not outweigh the remaining evidence.
4. Points not advanced at trial, and not involving new evidence, afforded no proper ground for appellate intervention. The points had been available below and had not been put to the expert. They could not fairly be developed on appeal so as to undermine the judge’s conclusion.
5. Per Lord Justice Ward, a judgment may be challenged where the judge fails satisfactorily to explain the conclusion. Here the judge had expressly relied on compelling, neutral expert evidence and had addressed the alleged anomalies. There was evidence upon which the finding could properly be reached, and more was required than showing that the evidence permitted two sides to the argument.

• High Court of Justice: His Honour Judge Alliott found that the defendant had sent the three defamatory e-mails.
• Court of Appeal (Civil Division): The application to challenge that factual finding was dismissed.