Kelsey (t/a Terry Kelsey Property Improvements) v Streatfeild

An appeal is not a rehearing. Permission should be refused where the evidence discloses neither procedural misbehaviour by the trial judge nor a conclusion that no properly directed judge could reach. Trial judges may intervene to understand the evidence, clarify issues, maintain proportionate proceedings and ensure that witnesses understand questions, particularly where a litigant in person is cross-examining. A judge need not address every aspect of the evidence, provided that the crucial matters are dealt with. An appellate court should respect clear findings based on the trial judge’s opportunity to assess the witnesses.

The claimant, a builder, sought payment for building work carried out for the defendant, an architectural design consultant. The county court found that the work was undertaken on a time-and-materials basis and ordered the defendant to pay £4,357.55, together with interest and costs.

The defendant applied to the Court of Appeal for permission to appeal. She alleged that the county court judge had intervened improperly, acted unevenly, supplied answers to witnesses, failed to deal with significant evidence and wrongly rejected her allegation that a document had been forged. The central issue was whether those complaints disclosed an arguable procedural error or an unsustainable finding of fact.

Application refused. Lord Justice Kay held that any appeal would be hopeless.

1. An appeal is not a rehearing. The relevant question was whether the evidence demonstrated that the county court judge had misbehaved during the hearing or had reached a conclusion that no properly directed judge could have reached.

2. The judge’s interventions were proper. A trial judge has primary responsibility for understanding the evidence and the issues raised in cross-examination. The judge must also ensure that the hearing is fair to both parties and that a witness understands the questions before answering. Interventions directed to those purposes are not improper merely because they interrupt a litigant in person’s prepared questioning.

3. The three-day hearing concerned a relatively limited dispute. The judge was entitled to keep the proceedings proportionate, focus on matters that genuinely affected the issues and prevent the hearing from being diverted by matters of minimal significance. There was no evidence that he had favoured the claimant.

4. A trial judge need not address every aspect of the evidence. It is sufficient to deal with matters that are crucial to the decision. The judge had made clear findings after hearing the parties and witnesses, including accepting that a disputed document was contemporaneous rather than forged. The defendant’s comparison of documents was inconclusive and did not provide a basis for appellate interference.

5. There was no evidence of procedural unfairness or of a finding that the county court judge was not entitled to make. Permission to appeal was therefore refused.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 214, Lord Justice Kay refused permission to appeal.
• Oxford County Court: On 24 October 2001, His Honour Judge Morton Jack ordered the defendant to pay £4,357.55, together with interest and costs.