Stephen Baister Writes... on Finding the Facts

“Facts alone are wanted in life. Plant nothing else, and root out everything else. You can only form the minds of reasoning animals upon facts: nothing else will ever be of any service to them.” So said Thomas Gradgrind in Dickens’s Hard Times.

Lawyers like the law and want to talk about it; and judges do too. But in most legal cases, especially when they come to trial, the facts are the main thing. Only once they have been established can you go on to apply the law to them with a view to getting the resolution to the matters in issue between the parties.

It is a shame then, as Lord Bingham noted in The Business of Judging, that “the judicial determination of factual issues occupies a somewhat lowly place, an activity of its nature ephemeral, uncreative and particular;” although he goes on to say, “To the judge, resolution of factual issues is (I think) frequently more difficult and more exacting than the deciding of pure points of law.”

He goes on to discuss the fact finding process at some length, concluding: “When I have done my best to separate the true from the false [by applying the principles he has discussed], I say which story seems to me the more probable, the plaintiff’s or the defendant’s, and if I cannot say which, I decide the case, as the law requires me to do, in the defendant’s favour.”

A couple of years ago, Dexter Dias KC, then sitting as a deputy High Court Judge, set out what he called “Thirteen axioms of fact-finding” in a case called Briggs v Drylined Homes Ltd [2023] EWHC 382 (KB), a claim by the widow of a Mr Brian Briggs, who died in 2017 after contracting mesothelioma. They are worth reading.

The facts will often decide the outcome of a case. There is a distinct advantage to the winning party when that is so, because, as we all know, appealing a judge’s factual findings is much more difficulty than appealing on the law. Lewison LJ explained why in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 and Volpi v Volpi [2022] EWCA Civ 464.

So, where possible get a judgment on the facts rather than the law, I say. Mr Gradgrind was right.

Stephen Baister
Board Director