Adversarial fact-finding is the foundation upon which judicial decisions are built. However, appellate courts are sometimes forced to make assessments of fact in circumstances where there has not been a trial – ‘facts without trial’. Part of the challenge of these ‘facts without trial’ is that in these cases, appellate courts are often confronted by matters beyond the immediate interests and knowledge of the parties, involving broader social facts and extended implications.

This session explores the interplay between theory, process and institutions that informs the ways in which appellate courts make findings of fact. It follows a workshop on this topic in November 2024, which brought together leading judges, practitioners and academics to reflect upon these issues.