Byrne v Mullan

An appellate court should interfere with a case-management decision only where the judge erred in principle or reached a decision outside the permissible range. In assessing late evidence, the court must consider the seriousness of the breach, the reason for it, and all the circumstances, including disruption to the trial. An appellate court should also respect findings of primary fact based on witness credibility unless the conclusion exceeds the generous ambit within which reasonable disagreement is possible. Where a document appears duly executed, the claimant alleging forgery retains the burden of proving it; the evidential burden does not fragment merely because the opposing party relies on an attesting witness.

These were two appeals from decisions of HHJ Madge in the County Court at Central London. The first challenged refusal to admit late witness statements concerning the credibility of the attesting witness, Mr Walker. The second challenged the finding that Mr Byrne had genuinely signed a 1997 transfer of land to Acorn Construction Ltd.

The trial judge rejected the forgery allegation and therefore did not decide whether Mr Byrne had previously held a beneficial interest in the land. The central issues were whether the case-management decision involved an error of principle, whether the trial judge had properly assessed the witness evidence and burden of proof, and whether he had mishandled a contemporaneous letter and excluded evidence.

1. First appeal dismissed. The refusal to admit the additional witness statements was a permissible case-management decision. The breach was serious because the application was made four weeks after the extended deadline and on the last working day before trial. There was no good reason for the delay, since the claimant could have anticipated that Mr Walker’s credibility would matter. The likely need to vacate or overrun the trial was a compelling factor. The judge did not base his decision on a definitive ruling that the evidence was inadmissible. Although the material might in some circumstances have been relevant to reliability rather than merely credibility, one proposed witness’s evidence about an unresolved claim was irrelevant and inadmissible. The material could also have been put to Mr Walker in cross-examination.
2. Second appeal dismissed. The finding that Mr Byrne signed the transfer was a finding of primary fact substantially based on credibility. The judge was entitled to accept Mr Walker’s evidence about his usual attestation practice, despite Mr Walker having no actual recollection of the event. The judge’s favourable view of Mr Byrne did not require acceptance of his evidence on the crucial issue, particularly where dishonesty was alleged. Nor did the apparent implausibility of Mr Mullan’s explanation compel that conclusion.
3. The appellate test was whether the finding exceeded the generous ambit within which reasonable disagreement about the evidence was possible, as explained in [2003] 1 WLR 577. That threshold was not met.
4. Mr Byrne retained the burden of proving forgery. Production of a prima facie validly executed document discharged any initial evidential burden on Mr Mullan. The burden did not shift back merely because Mr Mullan relied on Mr Walker’s evidence.
5. The judge’s reasoning on Mr Betts’s letter was imperfect in parts, but his rejection of the argument remained sustainable because it depended on a disputed recollection which he was entitled not to accept. The judge should not have considered evidence he had excluded, but doing so could only have assisted Mr Byrne and caused no appealable prejudice.

• High Court (Chancery Division): Both appeals from decisions of HHJ Madge were dismissed.
• County Court at Central London: The court refused permission to rely on late witness statements and, after trial, rejected the claim to a beneficial interest or larger beneficial interest in the land.