Debbie Deb-Nath v Ajit K Das

On an appeal against factual findings, permission should be refused unless the proposed appellant can show that the findings were unsupported by the evidence or that no reasonable court could have made them. The weight given to documents and other evidence is ordinarily for the trial judge. An appellate court is not required to seek evidence which the parties have chosen not to call. A trial judge may assess witness reliability by considering the witness’s answers, emotional presentation and conduct in the context of the evidence as a whole.

The claimant sought renewed permission to appeal from findings made by Recorder McNamara at Bradford County Court on 21 May 2021 in a personal injury claim arising from a road traffic accident. Liability and a neck injury lasting about 12 months were accepted. The recorder found that a later left shoulder condition was not caused by the accident and that the claimant was fundamentally dishonest in attributing it to the accident, exaggerating her symptoms and signing and relying on a third schedule of loss.

The renewed application challenged the treatment of documentary, psychiatric, surveillance and witness evidence, and the failure to seek evidence from the claimant’s solicitors. The central issue was whether the proposed appeal had a real prospect of success against findings of fact.

1. Application dismissed. The claimant could not arguably satisfy the stringent test applicable to an appeal against findings of fact. The appellate court would need to be satisfied either that the findings were unsupported by the evidence or that no reasonable court could have made them.
2. The recorder had considered the documents referring to pain in the claimant’s neck and left shoulder before November 2015. The weight to be given to those documents was a matter for him, and his conclusion was one which a reasonable court could reach.
3. The recorder was entitled to rely on the joint statement of the consultant psychiatrists, Mr Bird and Dr El-Assra, expressing the opinion that the claimant had exaggerated her symptoms. That opinion was not unreasonable evidence.
4. The recorder’s reliance on surveillance evidence was open to him. The principal discrepancy was between the claimant’s presentation in the surveillance video and her presentation to the defendant’s expert, Dr Edwards, on the same day.
5. The recorder was entitled to reject the claimant’s explanation for signing a third schedule of loss exceeding £652,000 when the later fourth schedule claimed approximately £272,000. The parties decide what evidence to call; the recorder had no duty to seek evidence from the claimant’s solicitors.
6. The recorder’s assessment of the claimant’s reliability was not shown to be flawed. His reference to her becoming emotional was part of a wider assessment of why she became emotional, loquacious or unable to provide satisfactory answers.

• County Court at Leeds: Renewed application for permission to appeal dismissed.
• Bradford County Court: Recorder McNamara’s decision of 21 May 2021 made findings that the later left shoulder injury was not caused by the accident and that the claimant was fundamentally dishonest.