Reference :
    Neutral Citation Number: [2015] EWCA Civ 1226 B3/2014/1360  





    Royal Courts of Justice Strand London, WC2
    29th October 2015
B e f o r e :




  ANDREW KING Claimant/Applicant


  KYONG-TAE KIM Defendants/Respondents



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    1. LORD JUSTICE DAVIS: The applicant, Mr King, who has appeared before me today in person, was engaged in a lengthy trial in the Kingston upon Thames County Court, the trial lasting over four days.


    1. The trial related to an incident of assault, occurring on the 17th June 2011, at a restaurant in Kingston. The judge (Recorder Wilson) found as a fact that Mr King had indeed been assaulted by the defendants. He found in his favour on that point. Where the judge found against Mr King was on the extent of the injuries which Mr King was claiming he had suffered. The judge, in the event, made a relatively modest award of damages in favour of Mr King.


    1. Mr King is very aggrieved at the way the trial went. He is very aggrieved at the outcome. He has said to me today, as I have to say many litigants say: "All I want is to have a fair trial"; and the distinct impression that I got from Mr King is that he considers that any outcome which is not favourable to him is of itself unfair.


    1. But it goes much further than that because Mr King has asserted that the judge was dishonest and biassed. I have to say that is assertion on the part of Mr King based on the outcome of the trial to him. This trial, as I have said, lasted over four days. Mr King was represented by counsel. He had every opportunity to put his case fully and clearly did so and the judge fully appraised the evidence.


    1. Mr King complains that the judge did not listen to Mr King and said that the judge in effect already had made up his mind in favour of the defendants. But that is not a conclusion that I can draw from the papers before me or from the very detailed and thorough judgment given by the judge.


    1. Mr King complains about the use of the interpreter's account of the evidence as given by the defendants, who apparently do not speak much if any English. That was a matter for the judge and in any event Mr King himself speaks Korean and could have corrected any perceived inaccuracies.


    1. Mr King is very much aggrieved at the involvement of Mrs Tong on behalf of the defendants. She apparently helped in drafting their written skeleton argument and assisted as McKenzie Friend at trial. It seems there is history between Mr King, on the one hand, and Mrs Tong, on the other hand, and there is ill feeling between the two of them. He says that Mrs Tong made numerous false allegations in the defendants' skeleton argument, served in advance of the trial and that has, as it were, poisoned the judge's mind in advance. But the judge did not base his evidential findings on a skeleton argument. He could not. His evidential findings were based on the evidence given by the witnesses in court before him. If Mrs Tong had made bad points on the evidence in the skeleton argument then they could not be sustained. If they were good points they could be sustained, it all depended on the evaluation of the evidence as actually given and not as asserted to be in written skeleton arguments.


    1. Mr King also has a complaint about the delivery of the trial bundle by, as he says, the defendants. But even if that was late it was a matter for the judge's discretion as to how he dealt with it. I asked Mr King if he had sought an adjournment on the ground of late delivery of the bundle. He had one stage to me, yes, his counsel had sought an adjournment, although that does not appear on the papers before me. However, at a later stage in his argument before me he suggested that the complaint about the bundle was as to the fact that it had included Part 36 letters which should not have been there. But either way the trial proceeded. As I have said it lasted a long time. There was ample chance to digest what was in the bundle.


    1. A further point raised by Mr King is that his expert report by Dr Cooper was unfairly invalidated, as it were, by the trial judge, in the absence of contemporaneous medical or hospital records at the time of the actual assault. That was a matter for the trial judge and his assessment of the evidence. The fact is that at trial there was no production of any contemporaneous general practitioner records or hospital records as produced by Mr King.


    1. In that regard Mr King, at least in his written grounds, has sought to say that he has not produced such documents at trial because he understood that to be the consequence of an order made by District Judge Sturdy and District Judge Gold. It would be quite astonishing if any District Judge managing a case would have directed parties not to disclose highly material documents in the form of contemporaneous medical notes when the question of damages was very much in issue. There is no order of District Judge Sturdy to that effect. What is in the bundle is an order of District Judge Gold, dated 9th October 2012, which I have carefully read, and one specific order is that standard disclosure of documents is to be given. Unquestionably that would include contemporaneous medical notes relating to any injuries suffered, if they existed, and none were disclosed. The inference that the judge drew, perhaps unsurprisingly, is that either such contemporaneous medical records did not exist (although Mr King has before me this morning waved a bundle in front of me saying they did, although of course I have not looked at them) or alternatively if they did exist they did not help Mr King in his case with regard to the extent of the damage he had suffered.


    1. The fact remains that the claimants' account at trial was not in line with what he told the police at the time and as set out in the witness statement he made to the police at the time and furthermore the injuries of which he complained at trial were not endorsed by any contemporaneous note of the police or of any doctor at the time.


    1. The judge's assessment of the evidence, which he very fully reviewed, culminated in him saying this at paragraph 40:


"I formed a very negative view of Mr King's credibility. I do not doubt that he was shocked and humiliated as a result of the incident, but the extent of the assault and its consequence have been enormously exaggerated by Mr King. His account to the police on the evening of the incident clearly does not feature Mr King being knocked unconscious."

Mr King had apparently told the Recorder that he was happy with the statement which he had given to the police at the time. The judge went on to note that Mr King's evidence that he had a swollen face, which remained visible effectively for months, was inconsistent with the police evidence from that day and with the hospital doctor's evidence from the day after the incident. No photographs had been produced. The judge roundly found that Mr King's evidence as to the consequence of the attack "was in the main incredible and inconsistent".


    1. Mr King is very aggrieved at those findings. But those were findings open to the judge to make having heard the evidence and in the lack of positive documentary evidence to support what was being said. Mr King also complains about the judge's findings, about a loss of income but again, even if some documentation did exist and was produced the amount was not properly documented, which the Recorder would have expected to have existed if the claims were true; and the Recorder was entitled to find as he did. The Recorder gave ample reasons also for rejecting Dr Cooper's report. He also found that the first defendant had struck him as being a relatively straightforward and honest witness.


    1. As to the issue of the glasses about which Mr King is much aggrieved, the judge gave specific findings as to that, accepting the defendants' evidence on that and rejecting Mr King's evidence. Again, he having heard the evidence over a four day trial, that was a matter for the judge. There is no basis for this court interfering.


    1. Overall I have considered all the points that Mr King has raised. I do understand that he is very, very aggrieved at the outcome. But he is aggrieved because the judge has believed the defendants and has not believed Mr King on the issue of the extent of his damage. But I am sure his legal studies have taken him far enough for him to understand that questions of evidence are questions for the trial judge. The Court of Appeal does not offer a complete rehearing of the evidence in the absence of clear error on the part of the trial judge or clear error in the appraisal of the evidence. In reality, the Recorder gave ample reasons for explaining why he preferred the evidence of the defendants on this aspect and why he rejected the evidence of the claimant, Mr King. Indeed, the extent to which the Recorder was disapproving of Mr King's account as to what the Recorder thought was in effect exaggeration amounting to what the Recorder described as "a dishonest pursuit of a claim", is made clear in the judgment. Again, Mr King may not agree with that assessment. The point remains that that was the assessment of the trial judge who was entrusted with the task of forming a view as to where the truth lay.


  1. In my view, there is no arguable case here which would justify granting permission to appeal. The Judge has made findings of fact open to him on the evidence. That is not now open to successful challenge in this court and accordingly I dismiss this application.