Appealing findings of fact – A hurdle many will never get over

In Farrar v Rylatt [2019] EWCA Civ 1864 Coulson LJ provided a stark reminder of how difficult it is for a party to appeal a trial judge’s findings of fact.

The appellants, a builder and his construction company, appealed against the trial judge’s findings that no profit share agreements existed in respect of two developments, namely Hazel Grove and The Barns. Part of their case was that the judge’s findings on the factual evidence were unclear.

Coulson LJ dismissed the appeal and, in respect of the appellants’ complaints regarding the trial judge’s findings of fact, made it clear that any appellant faces an uphill struggle in appealing such findings. Having reviewed the authorities, Coulson LJ pointed out that for a successful appeal to be made against a trial judge’s finding of fact:

…an appellant has to show that there was no evidence to support the findings made, or there was a demonstrable misunderstanding of, or failure to consider, relevant evidence. If all the relevant evidence was considered by the judge then, even if the appellate court might have come to a different conclusion, an appeal against the trial judge’s findings of fact will fail. That is why an appeal against a trial judge’s findings of fact is such a high hurdle for an appellant to overcome.

The case is a timely reminder that parties should think twice about seeking to appeal a trial judge’s findings of fact given how difficult it is to succeed.

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