In Personam: The Better Approach To Appellate Intervention The Better Approach To Appellate Intervention | In Personam

In Personam

by Wan Zafran Pawancheek
Published July 16, 2016

The Better Approach To Appellate Intervention

More questioning of and by the judiciary themselves.

Appellate courts are generally less inclined to disturb a trial judge’s decision.

The “we can’t/shouldn’t question the trial judge” method that the appellate courts prefer in post-trial matters is common. But it’s unnecessarily restrictive, and unfair.

I cite, and prefer, Lord Atkin’s dissent in “The Eurymedon” [1943] 73 LL.L Rep. 217:

“… It is, in my opinion, a mistake to suppose that the decision of this House in the Hontestroom, [1927] AC 37, laid down as a proposition of law that an appellate tribunal must in all cases accept the findings of a trial Judge where he purports to base these on his belief in the credibility of particular witnesses. No Court can so restrict its statutory jurisdiction; and in these days, where civil cases involving important questions of credit and reputation and even of liberty are determined by a Judge alone, it is of great importance that the full jurisdiction should be maintained.”

Trial judges aren’t always sharp. This usually has nothing to do with intelligence; most of them are just swamped with judicial work, and the weaker ones tend to miss out on the details. Some may even misinterpret, or err on significant points that could sway liability or quantum fully. Hence, appeals.

Thus, given the judicial tendency to berate less senior lawyers for producing allegedly lacking work, then:

  1. Appellate judges, being the more learned and experienced of their kind, ought to be just as proactive in questioning the work of their junior brethrens too.

  2. When an appeal has been filed to challenge the trial judge’s decision, appellate judges should not immediately presume a trial judge’s correctness. (They should be curious, and should investigate the authoritative record of appeal itself, rather than presume that all is well with the trial judge’s appreciation of the facts.)