Supreme Court dismisses appeal on misrepresentation, upholding trial judge's credibility finding of witness Philip Smyth.

THE SUPREME COURT

[Appeal No. 67/2015]

Denham C.J.

McKechnie J.

MacMenamin J.

Dunne J.

O’Malley J.

BETWEEN:

THE LEOPARDSTOWN CLUB LIMITED

PLAINTIFF/APPELLANT

AND

TEMPLEVILLE DEVELOPMENTS LIMITED AND PHILIP SMYTH

DEFENDANTS/RESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 11th day of July, 2017

1. I am in agreement with the judgment of the Chief Justice. This case had a duration of some 14 days in the High Court. During that

time, the learned trial judge had full opportunity to assess both the demeanour of the witnesses and the documentary evidence.

Some of the evidence was, as is pointed out in the judgments of the Court of Appeal, documentary. But a key element was the trial

judge’s assessment of witnesses, particularly his finding as to the credibility of the second named respondent, Mr. Philip Smyth. The

High Court judgment makes it very clear that the trial judge simply did not believe that the second named respondent, Mr. Smyth,

was a credible witness on the misrepresentation issue.

2. There was an evidential basis for that conclusion. This can be seen from the High Court judgment, where the judge gives his

reasons for his finding. It is also evident from a perusal of day 10 of the transcript, where the second named respondent was subject

to a searching cross-examination, and where his answers to counsel, and the judge, were vague and irreconcilable with documents in

the case, even documents emanating from his own company, that is, the first named respondent.

3. As the Chief Justice has pointed out, a finding of credibility is a finding of fact. (McCaughey v. IBRC & Another [2013] IESC 17). As

McCarthy J. points out in M v. An Bord Uchtala [1987] I.R. 510, at 529, a finding as to state of mind is also a finding of primary fact.

As in McCaughey, this case was pre-eminently one where the credibility of a witness was at stake, and where one of the primary

issues was whether the second named respondent gave the trial judge a credible account of his knowledge regarding the transverse

cable. (c.f. the judgment of Hardiman J. in McCaughey, at page 49, and also S.S. Gairloch, Aberdeen Glenline Steamship Co. v.

Macken [1899] 2 I.R. 1; Minister for Justice v. SMR [2008] 2 I.R. 242).

4. In an appeal from a lengthy trial, such as this one, each of the principles enunciated in Hay v. O’Grady [1992] I.R. 210 must be

applied. These principles enshrine the parameters within which an appeal court must operate. As the judgments of the Court of Appeal

correctly point out, appeal courts do not have the opportunity of seeing witnesses when they are testifying. It is the trial judge who

has the opportunity to experience “the mood of the trial, the demeanour of witnesses, the essential nuances of particular responses,

and many other features of the trial which, although they may have been crucially determinative in the judicial ascertainment of the

facts, may have become blurred or lost, where the oral evidence was reduced to writing”. (per Henchy J. in Northern Bank Finance

Corporation v. Charlton [1979] I.R. 49, at page 189).

5. It is true that transcripts may not always show that a witness hesitated before answering, or tried to avoid answering a question

put by counsel. But a consideration of day 10 of the transcript illustrates that, sometimes, transcripts can give a rather clear picture

of what went on in the trial court, and why a judge did not accept a witnesses testimony. Under cross-examination, the second

named respondent repeatedly failed to answer specific, and legally proper, questions. These questions were directed to whether the

second named respondent’s testimony as to his state of knowledge of the transverse cable was credible, bearing in mind the conduct

of, and documentation produced by, persons acting for, or representing, the first named respondent, Mr. Smyth must, or ought to

have, been aware of this documentation. The first named respondent, Templeville Developments Limited, was, at all times, under the

control of the second named respondent. When the judge sought clarification of some of the answers tendered in cross-examination,

the witness did not prove able to clarify those answers. There was a clear basis for the trial judge’s finding on credibility, or more

appositely, non-credibility. As was correctly pointed out by the Court of Appeal, the trial judge’s conclusions were based on cogent

evidence.

6. What follows from this, and the authorities cited above, is that appeal courts are bound by a trial judge’s findings of fact, when

they are based on cogent evidence. Moreover, again applying the principles enunciated in Hay v. O’Grady, appeal courts should be

slow to adopt inferences other than the trial judge’s, again where they are based on factual material.

7. Save where there is a clear non-engagement with essential parts of the evidence, therefore, an appeal court may not reverse the

decision of a trial judge, by adverting to other evidence capable of being portrayed as inconsistent with the trial judge’s primary

findings of fact.

8. “Non-engagement” with evidence must mean that there was something truly glaring, which the trial judge simply did not deal with

or advert to, and where what was omitted with went to the very core, or the essential validity of his findings. There is, therefore, a

high threshold. In effect, an appeal court must conclude that the judge’s conclusion is so flawed, to the extent that it is not properly

“reasoned” at all. This would arise only in circumstances where findings of primary fact could not “in all reason” be held to be

supported by the evidence. (See Henchy J. in M v. An Bord Uchtala, cited earlier, quoting his earlier judgment in Northern Bank

Finance Corporation v. Charlton [1979] I.R. 149). “Non-engagement” will not, therefore, be established by a process of identifying

other parts of the evidence which might support a conclusion, other than that of the trial judge, when there are primary facts, such

as here. Each of the principles in Hay v. O’Grady are to be applied.

9. The task faced by the judges of our appeal courts is already too onerous. But the task would be made yet more onerous were

appeals to be reduced to a piece-by-piece analysis of the evidence, in an effort to show, on appeal, that the trial judge might have

laid more emphasis, or attached more weight, to the evidence of one witness, or a number of witnesses, or one document, or a

number of documents, rather than others on which he or she relied.

10. The trial judge’s major role is to determine facts. To that extent, the role must have a degree of autonomy. With experience in

fulfilling that role, there comes expertise. As has been pointed out in other jurisdictions, duplication of the trial judge’s assessments by

an appeal court will very likely only contribute negligibly to the accuracy of fact determination, but at significant cost in the diversion

of judicial resources. Parties to a case on appeal have already concentrated their energies and resources on persuading a trial judge

that their account of the facts is the correct one; requiring them to persuade three more judges at the appellate level is requiring too

much. A trial on the merits should be “the ‘main event’ … rather than a ‘tryout on the road.” (See the judgment of White J., speaking

for the Supreme Court of the United States, in Anderson v. City of Bessemer, 470 U.S. 564 [1985], page 574/575).

11. By virtue of sitting through the entire case the trial judge will be familiar with the evidence. The insight gained by a trial judge,

who has lived with the case for several days, weeks or even months, may be far deeper than an appeal court, whose view of the

case is much more limited and narrow, often being shaped simply by the issues which are placed before it. As the Supreme Court of

Canada pointed out in Housen v. Nikolaisen [2002] 2 S.C.R. 235, at paragraph 14, appeals are necessarily “telescopic”.

12. These almost trite observations are derived from a recent judgment of the Supreme Court of the United Kingdom in McGraddie v.

McGraddie & Another (Scotland) [2015] UKSC 1. But that judgment is helpful for another reason. It indicates that there is some

divergence between the approach laid down in our law, and that to be found in some other common law jurisdictions. In contrast to

those jurisdictions, our jurisprudence is not simply to the effect that “deference” is owed to the trial judgment, but, rather, that a

Court of Appeal is bound by the findings of fact, based on clear and cogent evidence. (See Hay v. O’Grady, as reiterated in C v. C

[2013] IESC 36; and McCaughey v. IBRC & Another [2013] IESC 17). It is true that, in other jurisdictions, the phrase “deference”, or

“considerable deference”, is sometimes used. That is not the law, as set out in Hay v. O’Grady.