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Hunter v Hughes [2005] EWCA Civ 830

Permission to appeal against a finding of lack of credibility concerning allegations of domestic violence refused.

Hunter v Hughes [2005] EWCA Civ 830

Court of Appeal: Ward and Smith LJJ (25 May 2005)

Summary
Permission to appeal against a finding of lack of credibility concerning allegations of domestic violence refused.

Background
This was an application by a mother for permission to appeal, not so much the order made by the judge but rather the conclusions the judge had reached at the end of a fact finding inquiry into allegations of domestic violence.

The mother and father lived together without marrying, and had two children aged four and seven. In 1997, the father was violently assaulted and, as a result, suffered serious physical injuries and a personality change, which gave rise to the allegations of specific incidents of violence and generalised allegations of threats and general violent propensity.

The judge at first instance reviewed the witnesses' evidence and dealt with the specific allegations set out in a Scott schedule, concluding that the relationship between the parties was a tempestuous one and, on balance, generally preferring the version of events given by the father.

The mother applied for permission to appeal, submitting that the judge had failed fully to take into account the contents of two documents that had been before the court.

Judgment
Held, refusing the application, that an appeal against a finding of a lack of credibility was virtually impossible to mount, and the mother did not come even close to mounting it in this case. It would not be appropriate for the court to interfere and say that the judge, who had listened to the evidence given by the parties, was palpably wrong and had abused the advantage which the trial judge enjoys over the appellate court of seeing the witnesses and judging them by their demeanour as opposed to judging the black and white letters of the transcript.

The court was critical of the fact that there was nothing in the order that dealt with the findings of fact: it was normal practice for an appeal to lie against the order of the court and not against the judgment. It would have been preferable to have an order reciting that none of the matters raised in the Scott schedule were established, and then the appeal could properly have been brought against that order.

Comment by Tacey Cronin, Albion Chambers

This is not an unusual appeal decision – the Judge saw the witnesses and was better placed than anybody else to assess their credibility. The impact of the documents fell far short of the admissions in Champken v Champken [2005] EWCA Civ 320. However, the reminder that judgments should specify the findings that are made (even, where no findings are made, the findings as to which witness's evidence is preferred) in the form of findings recorded on the face of the order or in a Scott schedule is timely as we start to gear up for the impact of the Domestic Violence (Victims and Crime) Act 2004. The same point was made with force in Re D (Children) [2005] EWCA Civ 825, an appeal from a fact finding decision in care proceedings heard six weeks later by a court also including Ward LJ. Judges have been spelling out their findings when making committal orders for years and it must be no more than good practice, particularly in cases where the consequences for either of the parties will be very serious – especially where the allegations (here, of violence, in D of sexual abuse) come close to criminal offences. Article 6 must have moved us past the point at which it was acceptable simply to prefer one case to another in such cases.

Read the full text of the judgment here