Diya v Halifax Plc

An appellate court should not overturn findings of fact that substantially depend on witness credibility unless the trial judge was plainly wrong. It is insufficient to show that the appellant’s account is more probable. Evidential anomalies, unexplained features and alternative possibilities do not by themselves justify appellate intervention. The appellate court should assess the evidence available and avoid speculation about possibilities that the evidence cannot resolve.

The claimant appealed from the dismissal of her claim by His Honour Judge Mackie QC in the Queen’s Bench Division. She alleged that two faxed instructions transferring money from her guaranteed reserve account to Japan bore forged signatures. The bank maintained that the instructions were genuine.

The trial judge relied on the bank’s records, handwriting evidence and witness evidence. He found that the claimant had authorised the transactions and dismissed the claim. The appeal challenged the evaluation of the evidence, including the reliability of a note recording a telephone call, the handwriting evidence, the timing of the claimant’s report and the significance of identical signatures on two documents. The central issue was whether the trial judge’s factual findings were plainly wrong.

1. Appeal dismissed. The claimant had to establish more than that her explanation was more probable than the bank’s. Because the trial judge’s findings substantially depended on his assessment of the claimant and Mr Richards, the Court of Appeal would interfere only if the judge was plainly wrong: [2002] EWCA Civ 1642; [2003] 1 WLR 577 at para 12.
2. The critical finding was that Mr Richards’s note accurately and objectively recorded the claimant’s request on 27 April to recall the £102,000 transfer. If accurate, the claimant knew of that transfer and had authorised it. The trial judge gave adequate reasons for treating Mr Richards as reliable, and the Court of Appeal was very slow to overturn that assessment.
3. The timing of the report and the identical signatures on two documents raised legitimate questions, but they did not compel a different conclusion. The evidence did not establish when arrangements had been made for payment from the Japanese account, and the reason for the identical signatures could not be determined. The court therefore declined to resolve those matters by speculation.
4. The handwriting evidence, apart from the montage issue, was inconclusive. The judge was entitled to concentrate on the undisputed documents, the expert evidence and the witnesses. Those matters did not cast serious doubt on his conclusion. The trial findings and dismissal of the claim therefore stood.

• Court of Appeal (Civil Division) — Appeal from the Queen’s Bench Division dismissal of the claimant’s claim by His Honour Judge Mackie QC on 20 May 2008. Appeal dismissed.