chapter
Questions 1 Does Laws J have a different view of the role of a first instance judge than Vinelott J (in Derby v Weldon)? 2 Are judges under a duty to bring, if at all possible, the law into line with common sense? 3 Would a lawyer from a codified system ever see law and legal reason in terms of ‘navigation across an uncertainly charted sea’? 4 Is Lord Lowry’s view of the judicial role too restrictive in comparison with the role of judges in other EU jurisdictions? (b) Court of Appeal
Pages 1

Balcombe LJ:… An appeal to the Court of Appeal is by way of rehearing: see RSC Ord 59 r 3(1). Unlike those cases where statute limits the right of appeal to a question of law, this court in a case such as the present has the right, and indeed the duty, to review the decision of the judge at first instance both on law and on fact. In doing so, it will, of course, follow certain well-established principles. Thus, it will not normally interfere with a finding of fact by the judge of first instance, where that finding depends on the credibility of a witness whom the judge has observed giving evidence. Again, an appellate court may interfere with the exercise of a discretion by a judge of first instance only if it is satisfied that the judge has erred in certain well-defined respects… But, subject to the established limitations, this court can and should be prepared to review the decision of a judge of first instance, both as to law and as to fact…

Watt or Thomas v Thomas [1947] AC 484 House of Lords

Viscount Simon:… 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 the trial, and especially if that conclusion has been arrived at on conflicting 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… 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…