Green v L.I.B.S Ltd & Anor

On an appeal limited to a review, the appellate court must respect the trial judge’s advantage in hearing and assessing witnesses. It may reconsider primary facts and inferences where a real error is shown, but must give full weight to the advantages of the first-instance judge. It should interfere with an evaluation of facts only where the conclusion falls outside the range of reasonable disagreement. Particular caution is required where credibility and the judge’s overall impression of the evidence are important. The same restrained approach applies to a costs discretion: interference is justified only where the order falls outside the generous ambit of reasonable disagreement.

The claimants alleged that they owned horses and equipment seized when a lease was forfeited and a warrant of distress was executed. After a preliminary trial, HHJ Platts found that the claimants owned most of the horses and all the equipment, and ordered the third and fourth parties to pay their costs in proportions of 85% and 15%.

The third party appealed, challenging the factual findings, the judge’s assessment of credibility, the treatment of documentary evidence and the costs orders. The central issues were whether the judge’s conclusions were wrong or perverse, and whether the costs orders exceeded the proper scope of his discretion.

1. Appeal on ownership. The appeal against the findings concerning ownership of the horses was dismissed. Under CPR 52.21, the appeal was a review unless a rehearing was justified, and could succeed only if the decision was wrong or unjust because of serious procedural or other irregularity.
2. Factual findings and credibility. The principles in Assicurazioni Generali Spa v Arab Insurance Group [2002] EWCA Civ 1642 and Chen v NG (British Virgin Islands) [2017] UKPC 27 required particular caution before interfering with findings substantially based on oral evidence. The appellate court could make up its own mind on primary facts and inferences where necessary, but had to give full weight to the trial judge’s advantage in seeing and hearing the witnesses.
3. The judge had carefully considered the changing evidence, documentary material, informal transactions, alleged loans and allegations of conspiracy. His conclusions that the claimants were credible, that the evidence could have developed through genuine mistakes in recollection, and that the claimants had not concocted false evidence were open to him. The appellant had not shown that the findings were clearly wrong, perverse or unsupported by the evidence.
4. Costs. The claimants were properly treated as the successful party overall. The costs orders, including payment by the third and fourth parties in proportions of 85% and 15%, fell within the generous ambit of the judge’s discretion. The appeals against both costs orders were dismissed.

• High Court (Queen’s Bench Division): appeal from orders of HHJ Platts dated 16 January 2017 and 27 February 2017 dismissed. Permission to appeal had been granted on 18 December 2017.