Every case has winners and losers. Well, almost; there are some very odd cases that end in draws, for example both Anheuser-Busch and Budvar can use the term “Budweiser” in the UK currently because both launched under that brand name here at the same time. Of course, the losers always think they should never have lost. After all, if they thought they would lose, why would they fight on? And sometimes the losers have a point – so they appeal.
The Court is desperate to ensure it does not make mistakes, so the routes of appeal are many. You lose in the High Court, you ask permission of your High Court judge for an appeal. If the judge refuses, you can ask a judge in the Court of Appeal. If the appeal judge refuses, you can have a second stab at arguing in front of two Court of Appeal judges. Lose THAT and you’re stuffed; but if they allow it, you proceed with your appeal. Lose the appeal itself, and you get a stab at the Supreme Court for further permission; then that’s it. Of course, if you win the appeal, the other side get to try their luck at appealing…
Only thing is, if you are going to appeal, you should do so on a point of law. Appeal courts do not sully their elevated legal minds with anything as dirty as evidence. Indeed, why should they? It’s already been gone through by a trial judge, who can see the witnesses sweating and shaking with the fear of the mendacious and can assess them as a bad lot. Or that they are nervous but honest and telling the truth. Trials can last for weeks, appeals for days. There’s no time to go through it all again. Even in transcript form. (Unless the judge's assessment of the witnesses was plainly barmy, but that's very rare, believe it or not.)
This neat little case explains the principle admirably. It’s an appeal from the employment appeal tribunal, so the exact route for appealing is different, but the basics are the same. Mrs Clarke spent 13 days in 2009 trying to prove that Zurich had dismissed her unfairly, and failed. Worse for her, the employment tribunal took the unusual – but increasingly more used – step of ordering her to pay Zurich’s costs; usually ex-employees can bring claims gratis, to avoid putting off the genuine claimant, but if the tribunal thinks the claim is vexatious it can order the ex-employee to contribute to the employer’s costs. She therefore sought to appeal both the ruling on her claim and the ruling on costs. Repeatedly.
Her last stab was to ask the Court of Appeal for permission to appeal. The first appeal judge refused permission; she therefore had one final opportunity to argue, in person, before the Court of Appeal.
She took the opportunity; she lost. The Court saw the problem as the one that many appellants face. The point of an appeal is to review the law, not the facts. Zurich had dismissed Mrs Clarke on various grounds, mainly around her claiming to be entitled to a disability pension when she was not disabled, and not co-operating with doctors who were checking whether she was as disabled as she claimed to be.
Mrs Clarke argued was that the doctors had made a mistake in assessing the level of her disability. The tribunal said that, having considered the evidence, the doctors were correct. Mrs Clarke therefore alleged the tribunal made a mistake by not disagreeing with the evidently mistaken doctors. But Mrs Clarke could point to no error of law in the tribunal’s conclusion. Only that she disagreed with the conclusion. The Court of Appeal pointed out that the tribunal heard evidence, considered the evidence in the round, weighed it all up, and had come to a proper, logical, bona fide conclusion. No ground for appeal.
Mrs Clarke argued that she had co-operated with the doctors. The tribunal said that, having considered the evidence, she had not. Mrs Clarke therefore alleged the tribunal made a mistake by following the evidence in the wrong way. But Mrs Clarke could point to no error of law in the tribunal’s conclusion. Only that she disagreed with it. The Court of Appeal pointed out that the tribunal heard evidence, considered the evidence in the round, weighed it all up, and had come to a proper, logical, bona fide conclusion. No ground for appeal.
Mrs Clarke argued that there was a racial element to her dismissal. The tribunal said that, having considered the evidence, there was not. Mrs Clarke therefore...well, you get the picture. There was quite a lot of this sort of thing...
Mrs Clarke needed to find an error of law. That the tribunal had heard evidence from a witness who should not have been called, or that they had misinterpreted the level of disability required to get disability benefits, or that the head of the employment tribunal was on Zurich’s board of directors. That sort of thing. Simply saying that the tribunal believed the wrong facts is not enough. Mrs Clarke could not find an error of law; the Court found that the tribunal had applied the law to the facts perfectly satisfactorily and reached appropriate conclusions. Therefore there would be no further permission of appeal.
Of itself, the case is not important, beyond its relevance to the parties. It will not create precedent, as it was simply a request for permission to appeal, and normally such applications are not reported; indeed, often the “other” party won’t know of the application until they get the result, they will get to make their own case - if they need to do so - at the appeal itself. However, it is a useful reminder of a couple of things. One, how you have to find an error of law to get a chance to appeal. Two, how careful and conscientious the English Court is in making sure the answer is exactly right. On the facts of the case Mrs Clarke’s argument was without any real chance, yet she was given several goes to get it right. Is that fair? Does it lead to delays and costs? Possibly. But isn’t that part of the price of justice?