Later decisions that cite Watt or Thomas v Thomas
Viscount Stmon. My Lords, before entering upon an examination of the testimony at the trial, I desire to make some observations as to the circumstances in which an appellate court may be justified in taking a different view on facts from that of a trial judge. For convenience, I use English terms, but the same principles apply to appeals in Scotland. Apart Ae C1947. 3 2N THOMAS, Viscount Simon, HOUSE OF LORDS [1947] from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand ; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on con- flicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. What I have just said reproduces in effect the view previously expressed in this House—for example by Viscount Sankey L.C. in Powell v. Streatham Manor Nursing Home (1), and in earlier cases there quoted. Lord Greene M.R. admirably stated the limitations to be observed in the course of his judgment in Yuill v. Yuill (2). Lord President Clyde, in Dunn v. Dunn's Trustees (3), summarized the scope of appellate correction, with copious citation of earlier authority, and I agree with him that the true rule is that expounded by Lord President Inglis in Kinnell v. Peebles (4), that a court of appeal should "' attach the greatest weight to "the opinion of the judge who saw the witnesses and heard "their evidence"" and consequently should not disturb a judgment of fact unless they are satisfied that it is unsound. It not infrequently happens that a preference for A.'s evidence over the contrasted evidence of B. is due to inferences from other conclusions reached in the judge's mind, rather than from an unfavourable view of B.'s veracity as such : in such cases it is (x) [1935] A. C. 243, 250. (3) 1930 S.C. 4131. (2) [1945] P. 15, To. (4) (1890) 17 R. 416, 423. AND PRIVY COUNCIL. legitimate for an appellate tribunal to examine the grounds of these other conclusions and the inferences drawn from them, if the materials admit of this; and if the appellate tribunal is convinced that these inferences are erroneous, and that the rejection of B.'s evidence was due to the error, it will be justified in taking a different view of the value of B.'s evidence. I would only add that the decision of an appellate court whether or not to reverse conclusions of fact reached by the judge at the trial must naturally be affected by the nature and circumstances of the case under consideration. What I have said applies to appeals from a judge sitting alone. Conclusions of fact embodied in the verdict of a jury cannot be subjected to the same degree of re-examination—for the course of reasoning by which the verdict has been reached is not disclosed—and consequently the verdict of a jury on fact must stand if there was any evidence to support it and if the conclusion is one at which a reasonable jury when properly directed might reasonably.arrive. Lord THANKERTON. My Lords, I am of opinion that Lord Mackay, whose opinion formed the judgment of the Second Division, has misconceived or disregarded the duty of an appellate court in regard to the decision of a judge, sitting without a jury, on a question of fact (when there is no mis- direction), which has so repeatedly been laid down in your Lordships' House in cases from England and Scotland alike. The only suggestion by Lord Mackay of the Lord Ordinary having misdirected himself was as to onus of proof; but the Lord Ordinary, quite rightly, makes no reference to onus of proof, for, as has often been pointed out, no question of burden of proof as a determining factor of the case arises on a concluded proof, except in so far as the court is ultimately unable to come to a definite conclusion on the evidence, or some part of it, and the question will arise as to which party has to suffer thereby. The Lord Ordinary came to a definite conclusion on the evidence, and no question of onus did, or could, arise: Robins v. National Trust Co. (1), per Viscount Dunedin. I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus: I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the (1) [1927] A. C. 515, 520. 487 H. L. (Sc.) THoMasS v. THOMAS, Viscount Simon. 488 H.L.. (Sc.) 1947 Watt OR THOMAS v. THOMAS. Lord Thankerton. HOUSE OF LORDS [1947 | printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion ; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence ; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become | at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. It will hardly be disputed that consistorial cases form a class in which it is generally most important to see and hear the witnesses, and particularly the spouses themselves ; and, further, within that class, cases of alleged cruelty will afford an even stronger example of such an advantage. Normally the cruelty is alleged to have occurred within the family establishment, and the physique, temperament, standard of culture, habits of verbal expression and of action, and the interaction between the spouses in their daily life, cannot. be adequately judged except by seeing and hearing them in the witness box. The law has no footrule by which to measure the personalities of the spouses. In cases such as the present, it will be almost invariably found that a divided household promotes partisanship, and it is difficult to get unbiased evidence. It may be well to quote the passage from the opinion of Lord Shaw in Clarke v. Edinburgh & District Tramways Co., Ld. (1), which was quoted with approval by Viscount Sankey L.C. in Powell v. Streatham Manor Nursing Home (2). Lord Shaw said: "In my opinion, the duty of an appellate court in those "circumstances is for each judge of it to put to himself, "as I now do in this case, the question, Am I—who sit here 'without those advantages, sometimes broad and 'sometimes "subtle, which are the privilege of the judge who heard and > "tried the case—in a position, not having those privileges, to "come to a clear conclusion that the judge who had them "was plainly wrong? If I cannot be satisfied in my own "mind that the judge with those privileges was plainly wrong, " then it appears to me to be my duty to defer to his judgment." (1) 1919 S.C. (A. L.) 35, 37. (2) [1935] A. C. 243, 250. A. C. AND PRIVY COUNCIL. 489 Lord Shaw had already pointed out that these privileges in- H. L. (Sc.) volved more than questions of credibility; he said (1): " Witnesses without any conscious bias towards a conclusion "may have in their demeanor, in their manner, in their "hesitation, in the nuance of their expressions, in even the "turns of the eyelid, left an impression upon the man who "saw and heard them which can never be reproduced in the "printed page.'' I may add that, after it became usual to have the printed transcript of the evidence in place of the judge's notes, it was argued in at least one case that, having the ver- batim transcript of the evidence, the matter was more at large for the appellate court, but it is undoubted that the principle has not been relaxed—if, indeed, it has not been tightened— by the later decisions. I am aware that this contention was put forward in 1911 in Kilpatrick v. Dunlop (2). In reference to this contention Lord Halsbury said (3): '' Il am unable to " determine one thing or the other, namely, whether the appel- "lant or respondent was worthy of credit. It is a question of " credit, where each gives a perfectly coherent account of what "he has done and said, and contradicts the other. Under these " circumstances it is impossible that the Court of Appeal should " take upon itself to say, by simply reading printed and written "evidence, which is right, when it has not had that decisive "test of hearing the verbal evidence and seeing the witnesses, " which the judge had who had to determine the question of "fact, and to determine which story to believe." In other words, whereas you might formerly find in the judge's notes some indication of the impression made on his mind by the witnesses, no trace of any such impression is to be found in the cold, mechanical, record of the evidence. As regards the third proposition that I have ventured to express, an illustration of it will be found in the decision of this House in Hvalfangerselskapet Polaris A/S v. Unilever, Ld. (4), which is fully referred to by Lord Greene M.R. in Yuill v. Yuill (5), which also would appear to illustrate the same proposition. I do not pause to consider whether the decision of the First Division of the Court of Session in Dunn v. Dunn's Trustees (6) can be similarly justified, but I cannot accept Lord President Clyde's conclusion after a review of many of the (1) 3910" 5..C.-\(F 1.) 35, 30. (4) (1933) 46 LL L. Rep. 29. (2) 1916 S.C. 631 n. (5) [1945] P. 15, 20. (3) Ibid. 632 n. (6) 1930 S. C. 131. THOMAS Uv. THOMAS. Lord Thankerton. OR Thankerton. HOUSE OF LORDS [1947] authorities. I think his expressed feeling (z) that he might 'be underestimating the significance of the constant and " increasing insistence by the House of Lords on the' privileges' 'of the judge of first instance' was justified. Lord Clyde laid stress (2) on the dictum of Lord President Inglis in Kinnell v. Peebles (3), but, in my opinion, that dictum is not inconsistent with the decisions of this House, for the reasons stated by Lord Skerrington in Maguire v. Charles McNeil, Ld. (4), to which Lord President Clyde does not refer in Dunn's case (5), although he took part in its decision. My Lords, I am clearly of opinion that this present case falls under the second of my propositions, for I am satisfied, with all respect to my noble and learned friend on the woolsack, that I am not in a position, without enjoying the advantage of seeing and hearing the witnesses, of coming to a satisfactory conclusion on the printed evidence. Lorp MacmiLLan. My Lords, a court of law provides at the best but an imperfect instrument for the determination of the rights and wrongs of the most personal and intimate of all human relationships, that of husband and wife. No outsider, however impartial, can enter fully into its subtle intricacies of feeling and conduct. But when a case involving such questions arises the court must do its best to judge dispassionately between the parties though it may sometimes be left with a doubt whether with the imperfect means at its disposal it has achieved perfect justice, especially where the evidence is widely conflicting. The case now before the House provides a typical example of the difficulties I have indicated but it is also a typical case for the application of the well established rule defining the proper approach of an appellate court to the consideration of a decision on fact by the court of first instance, a rule which, in my opinion, is of special force in matrimonial disputes. The appellate court has before it only the printed record of the evidence. Were that the whole evidence it might be said that the appellate judges were entitled and qualified to reach their own conclusion upon the case. But it is only part of the evidence. What is lacking is evidence of the demeanor of the witnesses, their candour or their partisanship, and all the incidental elements so difficult to describe which makeup the (x) 1930 SxC. 245: (4) 1922 S.C. 174, 189. (2) Ibid. 144. (5) 1930 S. C. 131. (3) (1890) 17 R. 416, 423-4. A. ¢. AND PRIVY COUNCIL. 491 atmosphere of an actual trial. This assistance the trial judge H. L. (Sc.) possesses in reaching his conclusion but it is not available to the appellate court. So far as the case stands on paper, it not infrequently happens that a decision either way may seem equally open. When thisis so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed. This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the trial judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistences and inaccuracies or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong. But I need not pursue this topic which has been so fully expounded in many cases in this House and to-day again by my noble and learned friends who have preceded me. It is suffi- cient for me to say that, agreeing with Lord Thankerton in all that he has said, I do not find in the opinion of Lord Mackay, which embodies the views of the Second Division of the Court of Session or in the criticism to which the judgment of the Lord Ordinary was subjected at your Lordships' bar any adequate justification for reversing the decision-which the Lord Ordinary reached. If the case on the printed evidence leaves the facts in balance, as it may be fairly said to do, then the rule enunci- ated in this House applies and brings the balance down on the side of the trial judge. Lorp Stmonps. My Lords, from time to time this House has propounded the principles upon which an appellate court should review the findings of fact of a judge sitting without a jury, and, if I may respectfully say so, I am well content to accept what has fallen from both my learned and noble friends upon this matter. I would, in particular, say that I concur in the three propositions stated by my noble and learned friend, Lord Thankerton. In my opinion, whatever may be the correct way of stating the principle, the learned judges of the Second Division were not justified in taking a different view of the facts of this case from that taken by the Lord Ordinary. My Lords, I must venture to say with all deference that they appear to me to have disregarded the principles laid down in this House for the guidance of courts of appellate jurisdiction, where the appeal is against a finding of fact by a lower court. Applying 1947 WATT OR THOMAS uv. THOMAS, Lord Macmillan, Hi Le-(Se.) THOMAS Uv. THOMAS, Lord Simonds. HOUSE OF LORDS [1947] those principles to this case I am satisfied that an appellate court having none of those advantages which the trial judge enjoyed of hearing and observing the witnesses, was not justified in concluding that he was so clearly wrong that their judgment of fact should be substituted for his. Nor do I find in the judgment of Lord Mackay any real appreciation of the weight that should be given to the trial judge's own estimate of the value of testimony. I suppose that if ever there was a class of case, in which an overwhelming advantage lies with the judge who has the witnesses before him, it is in the arena of connubial infelicity and discord. To me, as I read through those many pages of evidence, once and again the reflection occurred : would that I could have seen the witness and heard his voice as he said this or that. I do not think that with only the cold written word to guide me I should have come to a different conclusion from that of the Lord Ordinary. Much less do I think that there is any justification for doing so when he has enjoyed the important advantages denied to an appellate court. There I should be content to leave this case but for certain criticisms made by counsel for the respondent in his able and candid address. Relying on the testimony of certain witnesses called on behalf of the respondent (whom I need not name) he said that the learned Lord Ordinary had come to a con- clusion which was diametrically opposed to that testimony, yet he had not explicitly stated that he did not accept them as witnesses of truth nor indeed, made any adverse comment upon them. Your Lordships were therefore invited to find that the learned judge had forgotten or ignored this evidence and to hold that his judgment was thereby vitiated. I believe this to be fundamentally unsound criticism. The trial judge has come to certain conclusions of fact ; your Lordships are entitled and bound, unless there is compelling reason to the contrary, to assume that he has taken the whole of the evidence into his consideration. If his conclusion is inconsistent with the evidence of certain of the witnesses but he does not, in terms, stigmatize them as false witnesses, it is not the proper or necessary inference that he has forgotten or ignored them ; of this the present case is a cogent example, for I can well understand why the Lord Ordinary, while not accepting his evidence, did not think fit to comment unkindly on one at least of the witnesses in question. I concur in the motion that the appeal be allowed. A. C. AND PRIVY COUNCIL. Lorp Du Parcg. My Lords, I was a party to the decision of the Court of Appeal in Yuill v. Yuill (1) to which my noble and learned friend on the woolsack has referred. I am happy that it should meet with approval in this House and I agree with my noble friend's statement of the result of earlier cases. -All the authoritative decisions which relate to the proper attitude of an appellate court towards the findings of fact of the trial judge naturally tend to lay emphasis on one aspect of the question, either on the fact that the appellate court's duty to see justice done may constrain it to reject the judge's findings, or on the undesirability of deciding a case on a written record against the view of the judge who heard the witnesses. But, though one aspect may be emphasized, the other must always be present to the mind of the court. Thus, in Ywill v. Yuill (2), where the decision of the judge was reversed, Lord Greene M.R. said: "'It can, of course, only be on the rarest occasions, "and in circumstances where the appellate court is convinced "by the plainest considerations, that it would be justified in "finding that the trial judge had formed a wrong opinion." My Lords, I am satisfied that this is not one of those very rare occasions. There are, no doubt, cases in which it is proper to say, after reading the printed record, that, after making allowance for possible exaggeration and giving full weight to the judge's estimate of the witnesses, no conclusion is possible except that his decision was wrong. I can come to no such conclusion in the present case. Appeal allowed.