Walker v Daxbourne Int Ltd

An appeal based on factual findings should not be excluded at the permission stage merely because it challenges the trial judge’s view of witnesses. Where the proposed appeal raises a realistic argument that the judge overstated an alleged falsehood and allowed it to discredit the witnesses’ evidence generally, permission may be granted. The court should consider the context in which the earlier evidence was given, including whether the disputed distinction mattered in that proceeding, the lapse of time, and whether stress or questioning may explain the inconsistency without deliberate dishonesty. These points establish arguability, not the ultimate merits. Other credibility findings, including demeanour, do not necessarily remove that arguability.

The proceedings concerned alleged infringement of a patent for a hair-piece incorporating a butterfly clip. The central factual issue was whether the clip had been publicly disclosed at a restaurant before the priority date. The trial judge rejected the appellant’s evidence after placing substantial weight on inconsistent evidence given by the appellant and her expert witness in earlier United States patent proceedings.

An earlier application for permission to appeal had been refused. On renewal, the appellant argued that the case involved more than disagreement with a factual assessment because the trial judge had treated the earlier evidence as demonstrating deliberate falsehood and had allowed that conclusion to affect the wider credibility assessment.

1. Disposition. The renewed application for permission to appeal was granted. Carnwath LJ expressed little optimism about the eventual result, but held that the proposed appeal was realistically arguable.
2. Ordinary appellate restraint. A challenge to a trial judge’s assessment of witness credibility will normally be treated as a challenge to fact. That was the basis on which the earlier application had been refused. The present case arguably raised a different issue: whether the trial judge had materially overstated the significance of the inconsistency and its effect on the evidence as a whole.
3. Context of the earlier evidence. In the United States proceedings, the legally relevant question was when the witness first became aware of the device. Whether the disclosure occurred at a restaurant was immaterial. In the English proceedings, by contrast, the public nature and timing of the disclosure were crucial to the prior-disclosure issue.
4. Arguable mischaracterisation. The events were many years old, and the witness’s statement that most of his deposition was wrong was qualified when read in context. His explanation referred to stress, lack of recent involvement in the field and lengthy questioning. That evidence was capable of supporting an arguable explanation involving an understandable but reprehensible mistake rather than deliberate falsehood. It therefore did not necessarily justify treating the witness’s evidence as wholly discredited.
5. Other credibility matters. The trial judge had relied on other matters, including demeanour, and had treated the witness’s evidence with caution in relation to obviousness. Those matters did not remove the arguability of the proposed challenge to the reasoning. The appeal was accordingly not ruled out at the permission stage.

1. Court of Appeal (Civil Division): On a renewed application, permission to appeal was granted.
2. Chancery Division, Patents Court: HHJ Fysh decided the patent dispute and made findings adverse to the appellant concerning prior disclosure, credibility and obviousness. An earlier application for permission to appeal had been refused by Jacob LJ.