‘Penumbra of imprecision’

Assicurazioni Generali SpA v Arab Insurance Group (BSC) (CA TLR 13 November)

Where it is sought to reverse a factual decision of a lower court the appellate court should adopt the same approach, whether the hearing was conducted as a review or as a rehearing. CPR 52.11 provides:’(1) every appeal will be limited to a review of the decision unless … (b) the court considers … it would be in the interest of justice to hold a rehearing … (3) the appeal court will allow an appeal where the decision of the lower court was … (a) wrong …’ Under the previous rules an appeal to the Court of Appeal was by way of rehearing. When in Tanfern Ltd v Cameron-MacDonald (Practice Note [2000] 1WLR 1311), the judge said that rule 52.11(3) limited the appeal courts duty to a review of the lower court’s decision and it might only interfere in the quite limited circumstances set out in the rule, he was referring to the significant change in practice in relation to what used to be called ‘interlocutory appeals’ from district judges or Masters. In other appeals, even under the old rule, although expressed to be by way of rehearing, the exercise in which the Court had been engaged was essentially one of review. The extent to which findings of fact depended on oral evidence, or what Lord Hoffmann had described as the ‘penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance’, would vary from case to case. In the present case the judge had the considerable advantage of seeing witnesses and assessing their credibility against the documentary material. The Court should take particular care before holding that his conclusions of fact were wrong. The approach of the Court in such a case, where it had not been suggested that the Court should rehear the evidence, was, or should be, the same whether it was conducting a review or a rehearing, as those expressions were used in rule 52.11.