Edgar v Berger & Others

At the permission stage, an appellate court must assess whether there is a real prospect of showing that a trial judge’s finding of fact was one which the evidence did not permit, and whether any such error could affect the outcome. Particular caution applies to challenges based on witness credibility. The trial judge has the advantage of hearing and seeing witnesses under cross-examination. Unless powerful evidence demonstrates that the assessment was perverse or otherwise not properly made, the appellate court must respect it and must not substitute its own view. A disagreement with the trial judge’s conclusions is insufficient.

Mr Edgar brought claims alleging fraud, dishonesty and breach of trust against solicitors who had acted in his affairs. Mr Justice Rougier dismissed the actions after a lengthy trial, rejected Mr Edgar’s evidence, and ordered costs on an indemnity basis. Mr Edgar sought permission to appeal, principally challenging findings of fact and credibility.

His application was dismissed in his absence after procedural directions concerning the identification of appeal grounds and access to transcripts. He later applied to reinstate the permission application. The question before the Court of Appeal was whether reinstatement should be allowed and, if so, whether the proposed appeal had any real prospect of success.

1. Applications refused. The application to reinstate the application for permission to appeal was refused because any appeal would be bound to fail. The earlier refusal of permission therefore stood.
2. At this stage the court had to examine the findings challenged, the evidence relied upon, whether there was a real prospect that the Court of Appeal would conclude that a finding was not open to the trial judge, and whether any different finding could have affected the result.
3. The challenge principally concerned credibility. A trial judge hears the evidence and sees witnesses under cross-examination. An appellate court lacks that advantage. It must respect the trial judge’s assessment unless very powerful evidence shows that the assessment was perverse or was not properly made.
4. The passages identified by Mr Edgar did not provide a basis for concluding that Mr Justice Rougier was not entitled to prefer the evidence of Mr Stein and Mr Berger, or that the judge had failed to assess Mr Edgar’s evidence properly. The Court of Appeal was not required to decide whether it would itself have reached the same conclusions.
5. The judge noted a possible issue concerning whether some claims belonged to Mr Edgar’s companies rather than to him personally, referring to Johnston v Gore Wood, but expressly left that issue undecided because it was unnecessary for the application.

• Court of Appeal (Civil Division): the application to reinstate the permission application and the application for permission to appeal were refused.
• High Court, Chancery Division: Mr Justice Rougier dismissed Mr Edgar’s actions after trial and ordered indemnity costs.