In an appeal which raises questions of a trial judge’s evidential analysis, you could be forgiven for assuming that obtaining a transcript of the evidence should be the first job on any appellant file handler’s ‘to do’ list. However, the High Court has confirmed that, in some instances, obtaining a transcript may be unnecessary for an appeal to be advanced.

The case of Bates v Snozone (Holdings) Ltd [2021] EWHC 1828 (QB) concerned an accident on an indoor ski slope in which the Claimant/Appellant suffered severe injuries to her leg. There was a factual dispute about the mechanism of the accident and the adequacy of the Respondent’s system of maintenance was in question. At first instance, HHJ Saunders heard evidence from lay witnesses for both parties, and considered expert evidence from both parties, before concluding in his written judgment that the Appellant had suffered an unfortunate accident which could not be attributed to any breach of duty on the part of the Respondent. The Appellant levelled criticism at the trial Judge’s evidential analysis, asserting that there were fatal self-contradictory findings and inconsistencies within the judgment. In particular she complained that the Judge had rejected parts of the Respondent evidence whilst accepting others and had made factual findings which had not been sought by either party.

The matter went before Stewart J at permission to appeal stage. Permission was granted and Stewart J dispensed with the need for the filing of any further documentation/bundle for the appeal. As a result, the Appellant did not obtain the transcript of the trial. No complaint was made about this by the Respondent until counsel filed a skeleton argument, late, which asserted that the appeal was bound to fail by reason of the lack of a transcript of the evidence. The Appellant asserted orally that, if the transcript was required, the appeal ought to be adjourned pending receipt.

Prior to considering the substance of the appeal, Farbey J considered whether or not she could proceed to hear the appeal in the absence of a transcript. She considered the procedural background to the appeal and the nature of the complaints made on appeal against the requirement for the Appellant to put relevant material before the appellate court. The Respondent asserted that a transcript was required in order for the appeal to succeed, relying upon the judgment of Nugee LJ in Amin v Amin (Dec’d) [2020] EWHC 2675 (Ch), who held at [23]:

“It is for the appellant to demonstrate on appeal that the trial judge has erred in a factual conclusion. In general that can only be done by showing either that there was literally no evidence in support of his conclusion, or that his decision was one that no reasonable trial judge could have come to (cf Perry v Raleys Solicitors [2019] UKSC 5 at [52]). It seems to me impossible to do that without having regard to the totality of the evidence before him; and that it follows that it is insufficient to point to documentary evidence, however plain it appears to be on its face, where it is said that oral evidence was heard which was relevant to the question. Unless it is accepted, which in this case it was not, that the oral evidence added nothing of relevance, I think that means that it is likely to be impossible to mount an appeal successfully on pure questions of fact without a transcript of the relevant parts of the evidence.”

However, Farbey J did not consider that Amin was authority for the proposition that a transcript is required in every appeal:

[32] In my judgment, Amin does not set down a hard and fast rule about transcripts. It does emphasise that a party cannot challenge a factual finding without providing all the relevant material which will, if a party says that a finding of fact is unsustainable, be likely to include the transcript of proceedings.

Farbey J concluded that a transcript was not necessary in this instance since the Appellant was not seeking to challenge findings of fact but rather to criticise the “building blocks” of the judgment, an exercise which could properly be carried out by analysing the judgment alongside the pleadings and witness statements, particularly given that the honesty of the witnesses was not in question. She concluded:

[29] In light of the way that Mr Smith circumscribed his challenge to the judge’s conclusions, there can be no requirement for a transcript in this case. If the court required a transcript of the full proceedings in every appeal raising factual matters in any way, it would present the spectre of appellate judges becoming more not less involved in the trial judge’s tasks of fact-finding and evaluation of evidence. That cannot be in the interests of the administration of justice. This court took the view, when granting permission to appeal, that the documents already in the bundle were sufficient for the fair disposal of the appeal. If the appellant had applied to introduce what would have been lengthy transcripts, there would have been uncertain legal and forensic benefit with increased costs for the parties. No criticism may be levelled at the appellant’s advisers for following a proportionate approach in accordance with the overriding objective as mirrored in Stewart J’s order. I would reject Mr Morton Jack’s submission that the entire appeal is bound to fail for want of a transcript.

Whilst Farbey J alludes to the potential disproportionality of obtaining a transcript of the evidence in a case such as this, I would urge appellants to adopt a cautious approach unless, as here, the court makes clear at case management stage that a transcript is not required. There is no clear line between appeals based on findings of fact (when a transcript would certainly be necessary) and appeals based on inconsistencies in the judgment (when a transcript may not be necessary). It is a brave appellant who elects not to obtain the transcript and risks criticism by the appellate court for failing to put before it relevant material upon which the appeal falls to be decided.