Verdon v B Y Hotels (Bournemouth) Ltd

On an application for permission to appeal, dissatisfaction with a trial judge’s evaluation of conflicting oral evidence is insufficient. An appellate court will not ordinarily interfere with findings of fact of this kind because the trial judge saw and heard the witnesses. Allegations of procedural unfairness must be supported by the evidence and the conduct of the trial. Evidence relevant only to quantum cannot give an appeal a prospect of success where liability has failed. Where the trial judge rejected the claimant’s account and found that suitable equipment was available, permission should be refused in the absence of demonstrated unfairness or other appealable error.

The claimant, an assistant housekeeper, brought a personal injury claim against her former employers after falling from a chair while reaching into a wardrobe. The Bournemouth County Court, before Mr Recorder Lamb QC, dismissed the claim, finding that her evidence was untruthful, that there had been no duvet on the top shelf, and that suitable steps had been available.

She applied for permission to appeal, alleging an unfair trial, failure to consider medical evidence, omission of supporting documents from the trial bundle, and inability to present her case. The central issue was whether those complaints disclosed an arguable challenge to the factual findings and gave the proposed appeal a prospect of success.

Application for permission to appeal dismissed.

1. The claimant’s complaints of unfairness were unsupported by the papers. The medical report which she said had been excluded concerned quantum, whereas her claim had failed on liability. It therefore could not provide a basis for a successful appeal.
2. The liability issue depended on resolving conflicting oral evidence between the claimant and the defendant’s witnesses. There was nothing to suggest that the trial judge had resolved that conflict unfairly. The claimant’s true complaint was that the judge had preferred the defendant’s evidence.
3. The Court of Appeal would not interfere with findings of fact of this kind because it had not seen or heard the witnesses, whereas the trial judge had. The claimant’s dissatisfaction with the findings did not justify appellate intervention.
4. The photographs and allegations concerning the condition or availability of the metal steps did not advance the case. The trial judge had found that steps were available and that the claimant had been shown where they were and how to use them.
5. Since the claimant’s evidence had been rejected and no appealable error or unfairness had been shown, the proposed appeal had no prospect of success. The application for permission to appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the claimant’s application for permission to appeal: [2002] EWCA Civ 1270.
• Bournemouth County Court: Mr Recorder Lamb QC dismissed the claimant’s personal injury claim.