A trial judge's failure to make findings on the credit of witnesses and on critical disputed factual questions — here, whether a plaintiff's use of a weapon was in self-defence or constituted a criminal assault — can constitute a substantial miscarriage of justice warranting a new trial, particularly where the unresolved question is material to common purpose liability, statutory self-defence under s 52 of the Civil Liability Act 2002, and the award of aggravated and exemplary damages. An appellate court cannot resolve such issues itself where they depend on credibility assessments.
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