“well to put it quite bluntly, sir, either I don’t think they’re being done as they ought to be done or whether they’re actually being carried out at all, sir. The sheets that were produced, some had ticks on them indicating that everything was serviceable, and a number, which I have stated in here, were just a blank sheet of paper with a registration number and a mileage at the top, sir”
“every sheet that was produced that wasn’t from a contractor, either had ticks all the way down and nothing else. Or they just had the mileage and registration at the top and nothing on them”
“in the light of all the findings that relate to this operator I have determined that the operator’s fitness to hold an operator’s licence is forfeit due to the actions, or inactions, of Stephen Ford and Kenneth Davies who, as a consequence have also forfeit their own fitness to hold an operator’s licence”
“The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.” 37. The extent to which those considerations are appropriate was considered in Assicurzioni Generali SpA v. Arab Insurance Group[2002] EWCA Civ 1642 ,[2003] 1 WLR 577 , in which Clarke LJ (as he then was) gave guidance in relation to appeals based on errors of fact in these terms:. “15. In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a ‘re-hearing’ under the Rules of the Supreme Court and should be its approach on a ‘review’ under the Civil Procedure Rules. 16. Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way”. 38. The approach to appeals in cases such as this was further considered in Subesh & ors v. Secretary of State for the Home Department[2004] EWCA Civ 56 , [2004] INLR 417 in relation to the statutory regime then in force by which an appeal lay from the Adjudicator (who heard the evidence) to the Immigration Appeal Tribunal. Para. 22 of Schedule 4 of theImmigration and Asylum Act 1999 conferred an unqualified right of appeal on any party, not limited by reference to any particular issue. 39. Giving the judgment of the court, Laws LJ analysed the authorities (both general and specific to asylum and immigration). Having made the preliminary points that the IAT’s jurisdiction was not limited by Wednesbury considerations (see[1948] 1 KB 223 ) and that it was “commonplace” that “an appellate court which has not heard the material oral testimony must be slow to impose its own view” (see [40] and [41]), he approached the question of what was meant by error – as opposed to mere disagreement – sufficient to justify interference with its decision. He said, the emphasis being his (at [44]): “The answer is, we think, ultimately to be found in the reason why (as we have put it) the appeal process is not merely a re-run second time around of the first instance trial. It is because of the law’s acknowledgement of an important public interest, namely that of finality in litigation. The would-be appellant does not approach the appeal court as if there had been no first decision, as if, so to speak, he and his opponent were to meet on virgin territory. The first instance decision is taken to be correct until the contrary is shown. As Lord Davey put it in Montgomerie [[1904] AC 73 at 82-3], “[i]n every case the appellant assumes the burden of shewing that the judgment appealed from is wrong” (our emphasis). The burden so assumed is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the supposed difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category.” 40. Thus, Laws LJ made it clear that the question was whether the appellate tribunal “concluded on objective grounds that a different view from that taken by the Adjudicator was the right one, or (and we mean it to be the same thing) whether reason and the law impelled them to take a different view” ([53]). For my part, this reasoning applies equally and with as much force to appeals from the Commissioner to the Transport Tribunal; neither do I read the recent decisions emanating from that tribunal to which we have been referred as suggesting to the contrary.”