Parker v Synder & Ors

Permission to appeal is exceptional where the proposed grounds challenge a trial judge’s assessment of witnesses and primary facts. An appellate court generally accepts findings based on oral evidence unless the judge misused the advantage of seeing and hearing the witnesses. It may more readily review inferences from established facts, but must still give weight to the trial judge’s evaluation.

Fresh evidence after judgment is admitted only in rare cases. The court considers whether the evidence could have been obtained with reasonable diligence, whether it would probably have an important influence on the result, and whether it is apparently credible. Evidence directed mainly to credibility will rarely justify reopening a concluded trial where the judge has already assessed the relevant witnesses.

Parker sought permission to appeal from a Chancery Division judgment of His Honour Judge Maddocks dismissing his claims against Snyder, Siddons and Price. The claims alleged conspiracy to weaken Dawn Processing Ltd and misrepresent its financial condition so as to induce Parker to sell its shares below value, together with breach of fiduciary duty.

After judgment was handed down, Parker sought to adduce evidence from Finn concerning two cash cheques and its possible effect on Siddons’s credibility and the substantive claims. The judge refused that application. Parker also challenged numerous factual findings, including the treatment of the December 1999 letter, the Cobbetts file and evidence concerning Pre-Retail Services. The central issues were whether the fresh evidence should be admitted and whether the proposed factual appeals had a real prospect of success.

1. Outcome. Gage LJ held that none of the proposed grounds had a prospect of success and refused permission to appeal. Sir Peter Gibson agreed.
2. Fresh evidence. The refusal to admit Finn’s evidence was an exercise of discretion. Applying the principles in Ladd v Marshall, the judge was entitled to find that Parker had not acted with reasonable diligence, that the evidence would not materially affect the cases of Snyder or Price, and that Finn’s reliability was problematic. The evidence was essentially directed to credibility and did not directly affect the substantial issues of conspiracy, misrepresentation or fiduciary duty. Since the trial judge was best placed to assess whether it would alter his findings, the refusal was not arguably wrong. It was highly unlikely that the Court of Appeal would itself receive the evidence.
3. Review of factual findings. An appellate court will only rarely interfere with primary findings, particularly findings based on the credibility of witnesses whom the judge saw and heard. It may be more ready to reconsider inferences drawn from specific facts, while still giving appropriate weight to the trial judge’s opinion and evaluation. The judge was not required to address every detail of lengthy submissions where he had made the findings necessary to decide the material issues.
4. Application. The judge was entitled to reject Parker’s and Pearson’s accounts, accept the evidence of Snyder, Price and Elliott, and treat the cheque issue as one of credibility. He was also entitled to find that the December 1999 letter was justified by Dawn’s trading position and that Parker had not relied on its representations. No arguable error was shown in these conclusions or in the finding that no fiduciary duty was owed. The application was refused.

• High Court, Chancery Division. His Honour Judge Maddocks dismissed Parker’s claims against the respondents. The judge later refused Parker’s application to adduce Finn’s evidence after judgment had been handed down.
• Court of Appeal (Civil Division). On 1 November 2005, Gage LJ and Sir Peter Gibson refused permission to appeal and declined to receive the fresh evidence.