Ocwen Ltd v Murphy & Anor

An appellate court must recognise the trial judge’s advantage in assessing witnesses who gave evidence in person. Findings of fact based on that assessment should be respected unless the trial judge failed to make proper use of that advantage. A challenge based merely on the weight of the evidence, including expert evidence, will not ordinarily establish a real prospect of success. Permission to appeal should be refused where the prospect of interference is only fanciful.

Ocwen Ltd brought mortgage possession proceedings against Daniel and Mary Murphy. The Central London County Court found that Mrs Murphy had signed the relevant credit and mortgage documents and made a possession order against her. It set aside the agreement and mortgage against Mr Murphy after finding that he had been induced to sign by Mrs Murphy’s misrepresentations.

Mrs Murphy sought permission to appeal, alleging that the judge’s factual findings were against the weight of the evidence. She relied particularly on expert handwriting evidence and evidence that she had paid part of the loan proceeds to Mr Murphy. The central issue was whether those challenges gave the proposed appeal a real prospect of success.

Application dismissed; no order for costs. Lord Justice Chadwick held that the proposed appeal had no real prospect of success.

1. The challenge was directed principally to findings of fact arising from the trial judge’s preference for one witness over another. An appellate court must recognise the advantage enjoyed by the judge who saw and heard the witnesses. It must respect the resulting findings unless satisfied that the judge failed to make proper use of that advantage.
2. The trial judge had considered the jointly instructed document examiner’s evidence, including the limitations and qualifications revealed in cross-examination. That evidence provided, at most, weak support for the contention that the disputed signatures were not Mrs Murphy’s and did not support the contention that they had been written by Mr Murphy. The judge was entitled to assess it together with the other evidence.
3. The judge had also been entitled to prefer Mr Murphy’s evidence that the disputed documents were signed by Mrs Murphy in his presence and to reject the evidence that she had paid him part of the loan proceeds. The proposed appeal therefore involved no more than an invitation to substitute the appellate court’s assessment of the evidence for that of the trial judge.
4. There was no real, as distinct from fanciful, prospect that the Court of Appeal would interfere with those clear credibility-based findings. Permission to appeal was accordingly refused.

• Court of Appeal (Civil Division) — dismissed Mrs Murphy’s application for permission to appeal and made no order for costs.
• Central London County Court — made a possession order against Mrs Murphy; set aside the credit agreement and mortgage deed against Mr Murphy; dismissed Ocwen Ltd’s claim against him; and made consequential costs orders.