Sohal v Suri & Anor

An appellate court does not retry a factual dispute. It reviews the trial judge’s reasoning and intervenes only where the finding is plainly wrong, lies outside the range of reasonable disagreement, or is undermined by objective evidence. A trial judge may use demeanour and credibility findings to resolve an evidential conflict where the objective evidence remains inconclusive, provided those findings are cross-checked against the evidence as a whole.

A judge need not make findings on every disputed matter. Failure to address evidence requires a retrial only where the omission is material to fairness or to a key issue. Complaints about the weight given to cumulative evidence are ordinarily insufficient. The appeal was dismissed.

Patwant Suri claimed that an oral agreement made with Tony Suri during family celebrations in Kenya provided for the exchange of Patwant’s share in a Kenyan property, together with the discharge of a loan, for Tony’s English property, Rectory Gardens. Patwant transferred his Kenyan share, but Tony did not execute a transfer of Rectory Gardens. After Tony’s death, the appellant, his personal representative, disputed the agreement.

HHJ Elly found that the oral agreement or sequence of agreements had been made and declared Patwant entitled to Rectory Gardens. The judge also rejected the claim for an account of rental income before the transfer. The appeal challenged the factual findings, the judge’s treatment of evidence and the refusal of an account. The central issue was whether the judge’s conclusions were legally open to him on an appeal against findings of fact.

Lady Justice Arden, with whom Lord Justice Aikens and Lady Justice Black agreed, dismissed the appeal, including the challenge to the refusal of an account of rents and profits.

1. Appellate function. The appeal court’s task was to review the judgment for error, not to retry the dispute. On credibility findings, particular weight is given to the trial judge’s opportunity to see and hear the witnesses. Findings involving evaluation of facts are not disturbed unless outside the bounds within which reasonable disagreement is possible. Where the appellate court is in the same position as the trial judge, it must generally decide correctness for itself. The same restraint applies to inferences drawn from primary facts and to the weight assigned to competing factors. Mere disagreement is insufficient; the proposed inference must generally have been inevitable. These principles were applied by reference to Armogas v Mundogas (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 and Datec Electronic Holdings v United Parcels Service [2007] 1 WLR 1325.
2. Fact-finding and demeanour. A judge need not resolve every disputed item of evidence, only the matters necessary to the decision. Circumstantial evidence should be assessed cumulatively. An erroneous inference requires the judgment to be set aside only if it was essential to the reasoning or so intertwined with the overall conclusion that the reasoning could no longer bear its weight. Demeanour may be probative and may resolve an evidential uncertainty where the judge has conscientiously considered the documentary and other objective evidence and found it inconclusive. The judge was entitled to rely on the witnesses’ truthfulness in that way. No contemporaneous evidence fundamentally undermined his assessment.
3. Unaddressed evidence. The judge’s failure expressly to make findings about the meeting of 1 July 2007 was not fundamental to the fairness of the trial. The alleged admissions were ambiguous, occurred after Patwant had already asserted his claim, and did not inevitably determine his credibility. The judge was also entitled not to draw an adverse inference from Bud’s absence as a witness.
4. Account of rents. The burden of establishing entitlement to an account for the period before the transfer lay on the appellant. The evidence that rents had been used for property expenses, tax and a supplementary pension, together with the absence of a prior request for payment, supported the judge’s conclusion. Mere gentle enquiries were equivocal and did not establish entitlement to the surplus.

1. Court of Appeal (Civil Division): [2012] EWCA Civ 1064. Appeal dismissed.
2. Slough County Court: HHJ Elly found that an oral agreement or sequence of agreements had been made, declared Patwant entitled to Rectory Gardens and rejected the claim for an account of rental income before the transfer.