Burke & Ors v Giumba & Ors

Where fresh evidence shows that a material trial finding was wrong, the appellate court must consider its effect on the reliability of the evidence and on the credibility assessments underlying the other issues. If credibility is central and the issues are factually and personally interrelated, it may be contrary to the interests of justice to preserve findings by compartmentalising the case. A retrial may therefore be ordered for all outstanding issues affected by the mistake, even where other evidence supports some findings separately. The appellate court should avoid expressing views on the merits for the retrial judge.

The claimants sued Mr Giumba and others concerning business arrangements involving a travel business and a wine bar. Judge Cowell accepted the claimants’ account, found no direct connection between the English businesses and the proposed Cyprus venture, and held that Mr Giumba was obliged to transfer shares. The judge also found for Mr Derbyshire on a Barclaycard payment claim. On appeal, a complete Barclaycard account showed that the sum had been paid, contrary to Mr Derbyshire’s trial evidence. The central issue was whether that mistake affected the credibility assessments and required a retrial of the remaining share-allocation and rent issues.

The appeal was allowed and the application for a retrial was granted.

1. The full Barclaycard account, unavailable at trial, showed that the disputed sum of £4,193.81 had been credited, although one payment was later removed. Mr Derbyshire accepted that payment had been made. The trial finding in his favour on that issue could not stand.
2. Mr Justice Collins held that the new evidence raised a real question about Mr Derbyshire’s reliability. It also potentially affected the assessment of Mr Giumba’s credibility, since the trial judge had rejected his evidence that the payment was made. The case had been decided substantially on credibility, and the documents concerning the 35 per cent share allocation did not point decisively in either direction.
3. Lord Justice Pill agreed that the issues could not properly be compartmentalised. The importance attached to the payment issue at trial, the close professional and personal relationship between the claimants, and the related nature of the transactions meant that the interests of justice required the outstanding issues to be reheard, notwithstanding other evidence capable of supporting particular findings.
4. The retrial was directed to the remaining issues concerning the 35 per cent share allocation and the rent claim of approximately £2,800. The Court expressed no view on the merits to guide the retrial judge.

• Court of Appeal (Civil Division): Granted leave to appeal out of time, allowed the appeal and ordered a retrial of the outstanding issues.
• Central London County Court: Judge Cowell had accepted the claimants’ account, ordered the relevant share transfer and found for Mr Derbyshire on the Barclaycard payment issue.