LEGAL PRINCIPLE: APPELLATE PRACTICE – Remittal of Case – Order for Retrial When Determination of Material Issues Depends on Credibility of Witnesses

This refines Principles 352 and 425 on retrial orders. Retrial is appropriate when: (1) trial court failed to make findings on material issues; (2) those issues require credibility assessment; (3) appellate court cannot decide without seeing witnesses. Material issues requiring credibility assessment include: conflicting testimony requiring demeanour evaluation, witness reliability determination, or factual disputes turning on whom to believe. Appellate courts should order retrial rather than: deciding credibility questions themselves (lacking trial advantage), dismissing claims (when findings might have supported plaintiff), or entering judgment (when witnesses must be assessed). This serves: preserving trial courts’ credibility assessment advantage, ensuring material issues are decided, and avoiding unjust outcomes from appellate courts deciding witness credibility without seeing them. However, if material issues can be decided from: admitted facts, documentary evidence, or inferences from established facts—appellate courts should decide rather than remit (see Principle 410). The distinction: credibility-dependent issues require retrial; document/inference-based issues can be decided on appeal. This ensures appropriate use of retrial remedy.