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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Cyma Petroleum Ltd & Anor v Cas Business Services Ltd (t/a Westwood Service Station) & Ors [2001] EWCA Civ 1078 (6 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1078.html Cite as: [2001] EWCA Civ 1078

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TECHNOLOGY
AND CONSTRUCTION COURT
(His Honour Judge Thornton QC)

		Royal Courts of Justice Strand London WC2
		Friday, 6th July 2001

1. LORD JUSTICE LATHAM: This is a renewed application for permission to take to the full court a ground of appeal in respect of which I had refused permission on paper. I had, however, at the same time granted permission to appeal in respect of what might be described as the major part of the dispute between these parties.
2. There is no need for me to go into detail about the nature of the dispute, save to say that the result was that on the all-important evening as far as this application was concerned there was an attempt to evict Mr and Mrs Stephenson from the service station which they had up until then been running. The allegation which was made on behalf of Mrs Stephenson was that, in the course of the attempt by those who came to the service station to evict them, she was pushed behind the counter of the booth in the station and held there against her will, subjected to aggressive abuse and, in particular, trapped there when the police eventually arrived by one of the men leaning on the flap of the counter so that she was unable to come out from behind it. That incident gave rise to claims of assault and unlawful imprisonment.
3. The judge undoubtedly considered that the evidence of the major participants in the incident (and, indeed, the major participants in the whole dispute) was evidence that he had to approach with some care. At the very beginning of his judgment, at paragraph 34, he made it clear that he considered that amongst that evidence was the evidence of Mrs Stephenson and that he was only likely to feel that it was reliable evidence upon which he could make proper findings if it was corroborated by other independent evidence. The conclusion that the judge came to was that Mrs Stephenson had not made out her case. He therefore dismissed her claim in both respects.
4. On her behalf it is submitted that, despite the fact that on its face that would appear to be a straightforward question of fact determined by the judge who heard the evidence and saw the witnesses, nonetheless there is a real prospect of persuading this Court to intervene. First, I have been asked to bear in mind that judgment was given four months after the end of the case and accordingly it may be that the judge did not have the evidence clearly in mind when he came to his conclusions. Secondly, I am asked to bear in mind that, in respect of one of the findings of fact which he came to on the basis of his conclusions in relation to a document, I have already given permission to appeal. That conclusion was that Mr Stephenson was effectively dishonest; and accordingly it is said that that was a background matter which the judge may well have used when assessing the strength of the case brought by Mrs Stephenson.
5. A particular criticism made of the judge by Mr Graham, who has appeared on Mrs Stephenson's behalf, is that he apparently misunderstood the case brought by her. As I have indicated, a significant part of the case was that she was trapped behind the counter when the police first arrived in an apparent attempt to ensure that she was not able to speak to the police officers first. But the judge, when he dealt with the issue at paragraph 167 of his judgment, said that:

"Mrs Stephenson's case was that the Hanchette party forcibly kept her behind the counter of the shop for some minutes until Inspector Bragg arrived and assaulted her, if only by shouts and threats."

6. It is suggested that in some way that indicates that the judge had failed to understand Mrs Stephenson's case. I do not agree. It may be an elision of the evidence into short form, but it certainly does not suggest to me that the judge misunderstood what the nature of Mrs Stephenson's case was. Accordingly, that criticism is not, in my judgment, well made.
7. The next point made is that the judge in one passage in his judgment appeared to suggest that her case as to false imprisonment was wholly inconsistent with the overall case which she was putting forward generally, which was that she did not want to leave the petrol station, and accordingly the judge concluded that her account must therefore be in some way unreliable. It seems to me that there is some force in that criticism. It seems to me that the judge clearly, in so stating, unfairly used the fact that she did not want to leave the petrol station as an answer to the claim that she was trapped behind the counter. The one is of no relevance in determining the truth of the other. Accordingly, I do approach the matter on the basis that there is at least some inconsistency in the judge's reasoning.
8. It is further said that, as far as the judge's conclusions were concerned, they ignore the effectively undisputed evidence that the main protagonist, Mr Hanchette, was described as "somewhat heated" and being "like a gorilla" by a witness whom the judge accepted, and that the police officer, Inspector Bragg, himself confirmed that Mr Hanchette could come across as being a bit aggressive in his attitude. Accordingly, it is said that where the judge said, again in paragraph 167, that there was no evidence of violent behaviour towards her, he was not giving proper weight to the evidence of those witnesses. Equally, in so concluding, he failed, it is said, to take into account what must have been, as it is described by Mr Graham, the chemistry of that evening, namely that there was without doubt at least verbal aggression on the part of Mr Hanchette and those with him, which itself should have provided support for the account given by Mrs Stephenson.
9. There is no doubt that those are arguments which could properly be deployed in persuading the judge that, despite the fact that there was no direct corroborative evidence, there was sufficient, taken together with the undoubted psychiatric condition of Mrs Stephenson after the event, to entitle the judge to conclude that she was a reliable witness in relation to what had happened inside the petrol station. It seems to me that this is classically a case where, if the judge had indeed come to a conclusion in Mrs Stephenson's favour, there was material upon which he would have supported that conclusion; and nobody, in my judgment, could have successfully challenged any such finding. At the end of the day, however, the judge did not come to that conclusion. He saw Mrs Stephenson. He heard her evidence. He came to the conclusion, as I have indicated, that he should look for corroboration, and he did not find sufficient corroboration. Although there is the criticism that I have already accepted in relation to his reasoning, this is essentially, in my judgment, a matter of fact and impression for the judge who heard the case. This court is unlikely to interfere except on the strongest material. The material that has been produced is not, in my judgment, in any way sufficient to justify the argument that this court would interfere.
10. I do not consider that there is any prospect of persuading this Court to interfere with the judge's conclusions in relation to the incident at the petrol station. Accordingly, I refuse permission to appeal in relation to that aspect of the case.
Order: application for renewal in part of permission to appeal dismissed; public funded costs assessment for Mrs Stephenson.