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Assicurazioni Generali Spa v Arab Insurance Group, Court of Appeal

20 November 2002
The issues

Appeals – challenge to factual findings – Appeal practice.

The facts

The Defendant appealed against the Judgment of Morrison J in the Commercial Court. The Appeal challenged the Judge’s factual findings or conclusions.

The decision

1. The Appeal would be dismissed.

2. Under the new Provisions (Civil Procedure Rules 52.11 (1)) every Appeal was limited to review of the lower Court’s decision and not a re-hearing, unless the Court decided otherwise.

3. Where an Appellate Court was asked to reverse findings of fact based on the credibility of witnesses, the approach should be the same whether the Appeal was by way of review or re-hearing. The approach would be dependent on the type of issue that the Judge had had to decide.

4. Here the Judge had seen the witnesses and had been able to assess their credibility against the documents. This was a considerable advantage. The approach of the Appellate Court should be the same in this kind of course, whether it was conducting a review or a re-hearing.

5. The difference would be of considerable importance where the Court was asked to consider the exercise of a discretion by the Judge below (Audergon -v- La Baguette Limited) but in a case where the factual findings of a Judge were challenged, the decision whether to hold a re-hearing or review by the Appellate Court would make little practical difference.

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