King v Hee-Tak Kim & Anor

An appellate court does not conduct a complete rehearing of evidence. Findings of fact, credibility and damages should stand where they were open to the trial judge on the evidence and were supported by adequate reasons. The Court of Appeal will intervene only for clear error by the trial judge or a clear error in the appraisal of evidence. Dissatisfaction with the result, disagreement with credibility findings, or the production of additional material on appeal does not itself establish an arguable case for permission to appeal.

The claimant brought proceedings arising from an assault at a restaurant. Following a four-day trial, the trial judge accepted that the assault occurred but made a modest award because the claimant’s account of the extent and consequences of his injuries was substantially rejected.

The claimant challenged the fairness of the trial, alleging bias, procedural irregularities, misuse of interpretation, shortcomings concerning the trial bundle, and improper rejection of expert and documentary evidence. The central question was whether those complaints disclosed a proper basis for appellate interference or an arguable case for permission to appeal.

1. Application dismissed. The Court of Appeal refused permission to appeal because no arguable case of appealable error was shown.
2. Appellate restraint. The Court of Appeal does not offer a complete rehearing of the evidence. It will not interfere with findings of fact or credibility unless there is clear error by the trial judge or a clear error in the appraisal of the evidence.
3. Application of the principle. The trial judge had heard the evidence over four days and gave detailed reasons for preferring the defendants’ evidence and rejecting the claimant’s account of the extent of his injuries. Complaints concerning alleged bias, the interpreter, the assistance of a McKenzie Friend, the trial bundle, the expert report, missing contemporaneous medical records, loss of income and the glasses were matters either within the trial judge’s case-management discretion or matters properly evaluated on the evidence.
4. The absence of contemporaneous medical records, inconsistencies with the claimant’s account to the police, and the lack of supporting evidence were matters capable of affecting credibility and quantum. The judge was entitled to draw the conclusions he did. The claimant’s disagreement with those conclusions did not justify appellate intervention.

• Court of Appeal (Civil Division) In [2015] EWCA Civ 1226, Lord Justice Davis dismissed the application for permission to appeal.
• Central London County Court The cover sheet identifies the appeal as being from this court before Recorder Gordon.
• Kingston upon Thames County Court The judgment describes the underlying four-day trial before Recorder Wilson. The assault was found proved, but only modest damages were awarded because the claimant’s evidence concerning the extent of his injuries was rejected.