Plainly Wrong
| Published date | 01 January 2023 |
| Author | Adam Perry |
| Date | 01 January 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12756 |
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Modern Law Review
DOI:10.1111/1468-2230.12756
Plainly Wrong
Adam Perry∗
English law and wider common law jurisprudence have endorsed the condition that an appellate
court should reject a trial judge’s nding of fact which it believes is ‘plainly wrong’.Courts have
not explained what makes a nding plainly wrong, however. Scholars have largely ignored the
issue.This ar ticle draws on recent work in epistemology to provide a new analysis of the plainly
wrong standard.Rationally,a court should not believe both (1) that a judge is a better fact nder
and (2) that the judge was wrong to nd some fact.If it does believe both, it should abandon the
belief it is less condent of. So,a court should reject a judge’s nding if it is more condent that
it is wrong than that the judge is a better fact nder.This analysis has implications for review of
administrative fact nding and for judicial deference generally.
INTRODUCTION
Much of a trial judge’s work is answering factual questions: questions about
‘who did what, where, when, how,and with what motive or intent’.1Was t h e
re accidental or deliberate? Was the car speeding when it hit the pedestrian?
Would the baby have been brain damaged had the doctor not botched the
delivery? A judge’s answers to such questions are ndings of fact.Since they are
crucial to any case’s outcome, the party unhappy with the outcome often asks
an appellate court to overturn a nding of fact.
These requests place the appellate court in an awkward position.The cour t
is asked to second-guess factual ndings by someone who, on the face of it,
is better positioned to make those ndings. The trial judge has access to all
the evidence a court has – and more. The judge sees and hears witnesses and
observes demonstrations; he or she may even visit the scene. In addition, the
judge is often better able to evaluate the evidence.The judge sits with a single
case for weeks or months, becoming immersed in its details. The judge also
develops the expertise that comes from recently making factual ndings day
after day, case after case. In both respects, the appellate court is at a marked
disadvantage compared with the trial judge.
In light of these disadvantages,it may seem that a court should never overturn
a judge’s factual nding. And yet a little reection shows that cannot be right.
The judge found that the car was speeding when it turned left o Pall Mall
onto St James’ Street. But that must be wrong: there is no left turn o Pall Mall
∗Associate Professor, University of Oxford; Garrick Fellow and Tutor, Brasenose College. For com-
ments I thank Kate Greasley,Sandy Steel, Jonathan Turner and two anonymous reviewers.
1 K.C.Davies, ‘Judicial Notice’ (1955) 55 Columbia Law Review 954, 952.
© 2022 The Authors.The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023)86(1) MLR 122–143
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,which per mits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
Adam Perry
onto St James’ Street, as anyone with a map of London can establish. The judge
found that acceptance of the oer to contract was communicated on Monday
31 March 1987. But 31 March 1987 was a Tuesday,as any calendar shows. Trial
judges are f allible,as we all are. They er r,as we all do. Some of their errors, like
in these examples, demand appellate inter vention.
Under what conditions, then,should a court reject a judge’s nding of fact?
In Clarke vEdinburgh & District Tramways Co,2the House of Lords was asked to
overturn a trial judge’s nding that the plainti did not cause a tram accident.
Lord Shaw wrote: ‘In my opinion, the duty of an appellate Court … is for
each Judge of it to put to himself, as I now do in this case, the question, Am
I – who sit here without those advantages, sometimes broad and sometimes
subtle, which are the privilege of the judge who heard and tried the case – in
a position, not having those privileges, to come to a clear conclusion that the
judge who had them was plainly wrong?’3
Less eloquently, the test is whether a trial judge’s factual nding is, in the
court’s view, plainly wrong. If it is, then the cour t should reject the nding.
Otherwise,the court should accept it. Today,Lord Shaw’s test is still the standard
by which courts in England and Scotland decide whether to overturn a trial
judge’s factual ndings. It has been ‘stated and restated in domestic and wider
common law jurisprudence’,4and endorsed many times by the House of Lords,
Supreme Court, and Privy Council, most recently in 2018.5
Even today,though, the test remains opaque. We all know what it is to make
a nding that is wrong simpliciter,wrong ungarnished by adverb.It is to nd that
a fact obtains when it does not or to nd that a fact does not obtain when it
does. But what makes a nding ‘plainly’ wrong? The word adds something; but
what, exactly? Lord Shaw does not say.Later courts have had little to add.6Ye t
the answer matters.‘Most cases tur n on ndings of fact.’7And the most general
limit on this most common basis for a decision is the neglected plainly wrong
standard.
Here I try to give the plainly wrong standard the attention it deserves. I
provide an analysis of what it is for a trial judge’s nding of fact to be plainly
wrong. My analysis will make more sense with the background in place, but
roughly it goes like this. Rationally, a court should not believe both that a
judge is a better fact nder and that the judge was wrong to nd some fact.
If a court does happen to believe both, then it needs to give up one of these
beliefs; but which? Answer: the court should give up the belief it is less certain
or condent of, other things being equal. So, a court should accept a judge’s
nding unless it is more certain that the nding is wrong than that the judge
2Clarke vEdinburgh & District Tramways Co 1919 SC (HL) 35.
3ibid, 37.
4Staechelin & Ors vACLBDD Holdings Ltd & Ors [2019] EWCA Civ 817 at [30] per Lewison LJ.
5 See for example McGraddie vMcGraddie [2013] UKSC 58 at [2];Henderson vFoxworth Investments
[2014] UKSC 41 at [61]; DB vChief Constable of Police Service of Northern Ireland [2017] UKSC 7
at [78]; Bahamasair Holdings Ltd vMessier Dowty Inc [2018] UKPC 25 at [33], [37].
6 The one exception is Henderson vFoxworth Investments ibid, which I discuss in below.
7 J.Leabeater and L. McCaerty,Civil Appeals: Principles and Procedure (London: Sweet & Maxwell,
2nd ed, 2015) 92.
© 2022 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(1) MLR 122–143 123
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