Lyon v Maidment

Permission to appeal should be refused where the proposed appeal has no realistic prospect of success. An appellate court will not interfere with a trial judge’s assessment of conflicting oral evidence merely because witnesses were honest or the judge may have misunderstood a peripheral matter. An alleged error in expert or medical evidence is immaterial where it was marginal and did not underpin the factual conclusion.

The claimant sought permission to appeal from the decision of Judge Bowsher QC, delivered on 25 June 2002, in a negligence claim arising from a skiing accident in Andorra. He alleged that the respondent had collided with him or cut across him while skiing.

The trial judge rejected that account after considering evidence from the skiers, skiing experts and medical witnesses. On the renewed application, the claimant challenged the assessment of the lay evidence, alleged a misunderstanding of one witness’s evidence, and disputed the judge’s treatment of medical evidence concerning hypoxia and confabulation. The central issue was whether those matters gave the proposed appeal a realistic prospect of success.

Disposition

The renewed application for permission to appeal was refused. Lord Justice Kennedy concluded that an appeal would have no realistic prospect of success.

1. The trial judge had examined the evidence carefully. He was entitled to distinguish between honesty and accuracy, and to find that witnesses recalling a brief event several years later might be honest but unreliable. On the evidence presented at trial, there was no basis for finding that the accident resulted from negligence by the respondent.
2. Even assuming that the trial judge had misunderstood a point in the evidence of Steve Tinsley concerning earlier skiing tuition, that matter was plainly not central to the overall conclusion and could not found a realistic appeal.
3. The claimant’s challenge to the medical evidence did not alter the position. Even assuming that the judge had overstated the evidence concerning hypoxia, the explanation referred to in paragraph 31 of the judgment was of only marginal significance. It was offered to explain apparent inconsistencies in the claimant’s accounts, which the judge had independently analysed.
4. Alleged changes in the respondent’s position after the trial did not undermine the trial decision, which had to be assessed on the evidence presented to the judge. The order was: application refused.

• Court of Appeal (Civil Division): On 4 October 2002, Lord Justice Kennedy refused the renewed application for permission to appeal, holding that any appeal had no realistic prospect of success: [2002] EWCA Civ 1485.