McGraddie v McGraddie
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Neuberger,Lady Hale,Lord Wilson,Lord Hughes |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] UKSC 58 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 2 |
| Date | 31 July 2013 |
[2013] UKSC 58
Lord Neuberger, President
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Hughes
Appellant
Andrew Smith QC
Jonathan Brown
(Instructed by McClure Naismith LLP)
Respondent
The Lord Davidson of Glen Clova QC
Eric Robertson
(Instructed by Balfour & Manson)
Respondent
Richard Keen QC
Stuart Buchanan
(Instructed by HBM Sayers)
Heard on 10 July 2013
Lord Reed (with whom Lord Neuberger, Lady Hale, Lord Wilson and Lord Hughes agree)
In the sets of Session Cases in the Advocates Library, the volumes for 1947 fall open at Thomas v Thomas 1947 SC (HL) 45; [1947] AC 484, where one finds in the speech of Lord Thankerton at pp 54 and 487–488 what may be the most frequently cited of all judicial dicta in the Scottish courts:
"(1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion. (2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."
The principles stated in Thomas v Thomas had, even then, long been settled law: the speech of Lord Shaw of Dunfermline in Clarke v Edinburgh & District Tramways Co Ltd 1919 SC (HL) 35, 36–37, where he said that an appellate court should intervene only it is satisfied that the judge was "plainly wrong", is almost equally familiar. Accordingly, as was said by Lord Greene MR in Yuill v Yuill [1945] P 15, 19, in a dictum which was cited with approval by Viscount Simon and Lord Du Parcq in Thomas at pp 48, 62–63, 486 and 493 respectively, and by Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1, para 17:
"It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion."
The reasons justifying that approach are not limited to the fact, emphasised in Clarke and Thomas, that the trial judge is in a privileged position to assess the credibility of witnesses' evidence. Other relevant considerations were explained by the United States Supreme Court in Anderson v City of Bessemer 470 US 564 (1985), 574–575:
"The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge's position to make determinations of credibility. The trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the 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. As the court has stated in a different context, the trial on the merits should be 'the "main event" … rather than a "tryout on the road." … For these reasons, review of factual findings under the clearly erroneous standard —with its deference to the trier of fact —is the rule, not the exception."
Similar observations were made by Lord Wilson in In the matter of B (a Child) [2013] UKSC 33; [2013] 1 WLR 1911, para 53.
Furthermore, as was stated in observations adopted by the majority of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235 at para 14:
"The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged."
While the law is not in doubt, its application has been inconsistent. From time to time it has proved necessary for its application to be considered at the highest level, in Scotland as in other jurisdictions.
In the present case, Clarke and Thomas were cited in the opinion of the Extra Division ( [2012] CSIH 23) in the time-honoured fashion. Counsel for the appellant however began his submissions by reminding the court of the words of Lord Hope in the case of Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1 at para 16:
"The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked."
Whether there has indeed been a failure to follow the proper approach is the issue which this court has to decide.
Lord President Dunedin remarked of the facts of Brownlee's Executrix v Brownlee 1908 SC 232 that the story seemed more like the closing scenes of the life of Père Goriot than the history of a middle class family in Glasgow. The present case prompts similar reflections.
The pursuer and his wife left Scotland many years ago and lived in the United States. They had two sons: Rodger, the first defender, and Daniel, from whom they had long been estranged. The first defender lived in Scotland with his partner, the second defender, and their son, Richard. In 2005 the pursuer's wife became terminally ill, and she and the pursuer decided to return to Scotland. They asked the first defender, who is a property developer, to find a suitable property for them, and he did so, finding a newly-built flat in St Helen's Gardens, Glasgow. The pursuer transferred the funds required to purchase the property into the first defender's bank account, and the first defender made the arrangements for the purchase and the conveyancing. Unknown to the pursuer, he arranged for the title to the property to be taken in his own name as proprietor.
The pursuer and his wife moved into St Helen's Gardens on 1 January 2006. She died six days later.
In February 2007 the pursuer gave the first defender a cheque in his favour for £285,000. The reason for his doing so is in dispute, as I shall explain. The first defender paid the cheque into a bank account. He and the second defender then used about £200,000 from the account, together with £90,000 raised by way of mortgage, to buy a newly-built house in Lochrig Court, Stewarton, taking title in their own names. They spent the balance of the £285,000 on cars, the repayment of debts, the decoration of their existing house in Glasgow in preparation for its sale, and on finishings for the house in Lochrig Court.
Later in 2007 the pursuer began the present proceedings, in which he sought a number of remedies, including the conveyance of the properties in St Helen's Gardens and Lochrig Court to himself. In his pleadings, he maintained that the first defender had acted without his authority in taking title to the properties in his own name, in the case of St Helen's Gardens, or in his and the second defender's names, in the case of Lochrig Court. In response, the first defender maintained that the pursuer had instructed that title to St Helen's Gardens was to be taken in his (the first defender's) name; and he and the second defender maintained that the £285,000 had been a gift.
In an opinion on the substantive issues in the case ( [2009] CSOH 142) which, if I may respectfully say so, seems to me to have been careful and fair, the Lord Ordinary, Lord Brodie, summarised the salient points in the evidence and then set out his assessment of the witnesses. It is clear that he found none of the principal witnesses entirely satisfactory. That is of course a familiar situation, perhaps especially in cases concerned with family disputes.
Nevertheless, the Lord Ordinary considered that the pursuer was "a confident witness, capable of being firm and even robust in the face of cross-examination", and that "there was an energy in his responses that had an air of conviction about it". He acknowledged that the pursuer's evidence "lacked much in the way of specifics or circumstantial detail" in relation to the second transaction and that he had forgotten some matters. The pursuer also appeared to contradict himself as to why he had paid £285,000 (rather than some other figure) to the first defender:
"At one point he indicated that this was the price that he had been advised by the builder's sales representative. At other points he emphasised that this was the price that the first defender had told him was required for the purchase of the property."
Nevertheless, the Lord Ordinary stated:
"On the central issue of whether the pursuer had made two substantial gifts to the first and second defenders, the demeanour of the pursuer and the content of his answers to questions did...
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