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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 >> Beckingham v Hodgens [2002] EWCA Civ 1901 (4 December 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1901.html Cite as: [2002] EWCA Civ 1901

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR CHRISTOPHER FLOYD QC
(Sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London, WC2 Wednesday, 4 December 2002

Wednesday, 4 December 2002

1. LORD JUSTICE SCHIEMANN: Before us is an application for permission to appeal on a ground which was refused by Justice Parker LJ when an application was made for permission to appeal to him in writing. On that occasion he gave permission to appeal on one ground; he refused on another ground, but with liberty to renew it to a court hearing the appeal (we are not concerned with those two matters); but in relation to a third ground, he said this:

"I can see no arguable basis for challenging the judge's findings of fact. In particular, I can see no ground for reopening the issue as to when the "video riff" was first heard by the McCluskey brothers."

There is no advantage in present company in setting out the background to this case.

2. It is suggested that the judge fell into error because he neither accepted the totality of one side's case, nor the totality of the other side's case. As a matter of general principle, judges are not obliged to choose between two stories and come down on one side or the other, and if they do not come down on the plaintiff's side then they must find for the defendant, which, as I understand it, is how the argument was advanced. It certainly does not apply as a matter of general principle, nor in my judgment does it apply on the facts of this case. The judge was desperately trying to find out what happened some 18 years before the hearing in relation to the composition of a tune where nothing was in writing, half the people could not read music and they were doing various things in the recording studios.
3. Doing the best that he could in finding his way through the fog, the judge came to a conclusion that in relation to some parts of the defendant's case he rejected them as being untrue; some parts of the claimant's case he rejected as being untrue and in relation to other parts he said that the position was not clear.
4. In my judgment, this court can only interfere with that type of finding if what the judge did was plainly wrong. I am not persuaded that he was plainly wrong. There is a suggestion that further evidence should be adduced in order to explain some evidence which was given by those who wished to give the further evidence now. In principle that is not the type of application which this court generally encourages, because people can say "we really meant to indicate one thing rather more clearly than we have." No doubt that is often true. But there has to be some finality to the fact-finding process. The fact-finding process is extremely difficult, and I accept, subject to error. It is possible the judge got it wrong; but there is no possible way that this court will do any better than he did.
5. I would refuse permission to appeal.
6. LADY JUSTICE HALE: I agree.
7. LORD JUSTICE JONATHAN PARKER: I also agree.
(Application refused; no order for costs).