Dismissing the appeal:
(1) The Judge had applied the correct test and had not lost sight of the distinction between Chase Level 1 and Chase Level 2 (i.e. actual guilt and reasonable grounds to suspect). She had referred to the relevant principles in her judgment. The fact that the Judge referred to matters which are not primary facts for the purposes of judging objectively whether grounds for suspicion existed should not be criticised as those matters were part of the evidence that came out at trial.
(2) Although the Judge did discuss in her judgment evidence which did not go to establishing objective reasonable grounds for suspicion, such as the Claimant’s state of mind; or matters which might be seen as “hindsight”, it was not clear how, if at all, it affected her decision.
(3) That contemporaneous documents may provide a better insight into the facts than the unaided recollections of witnesses, particularly where some time has passed is a relevant practical principle but is not a rule of law. The correct approach is to weigh up all the evidence and make findings that are properly supported by it. As such the Judge’s had not erred in her approach to the hearsay evidence put forward by the Appellant. Difficulties with hearsay evidence, in particular difficulties of context where the evidence is ambiguous, were rightly taken into account.
(4) The Judge did give little weight to certain pieces of evidence relied upon by the Appellant, but these were not important pieces of evidence.
(5) Where the Judge referred to matters which the Appellant criticised as irrelevant she was merely emphasising the necessity of viewing all the circumstances in their proper context – both what they did show and what they did not – and in doing so giving examples of circumstances which, if they had existed, might have provided additional support to the Appellant’s case.
(6) Overall the Appellant had not done enough to establish its case on justification. As per the conduct role, only the conduct or the Claimant, not that of any third party, was to be considered. Whilst some of the Judge’s findings may have related to matters which were barely, if at all, relevant to the question of the Claimant’s conduct, she had not lost sight of this key question and did not err in her overall approach.