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Appeals – "The Show Must Go On" or "Another One Bites the Dust"?

Wheeldon Bros Waste Ltd v Millennium Insurance Co Ltd
Court of Appeal
18 October 2018

In the same month as the Freddie Mercury / Queen biopic Bohemian Rhapsody hit UK cinemas, Coulson LJ provided useful guidance on the proper scope of appeals where parties disagree with the trial judge's findings of fact and / or their assessment of the expert evidence.  His conclusion was that there is limited scope for such appeals, particularly in the Technology and Construction Court ("TCC") – meaning that trials will continue to be the only show in town in the majority of cases. 

Background

A waste processing company (Wheeldon) purchased property insurance from Millennium in April 2014.  The insured property was a plant at which Wheeldon separated combustible and non-combustible materials from waste to produce 'SRF' (Solid Recoverable Fuel).  In June 2014 there was a fire at the plant, and a claim duly submitted. Two months later, Millennium declined to indemnify Wheeldon, relying on various alleged breaches of the policy. 

Wheeldon did not take that decision lying down and ultimately issued proceedings seeking a declaration that it was entitled to be indemnified.  The litigation appears to have been relatively hard-fought – there was an interim application about expert evidence and the trial was split to decide liability before quantum.

The trial on liability alone lasted five days.  The trial judge (Jonathan Acton-Davis QC) produced a lengthy judgment:

  • evaluating the expert evidence he had heard, ultimately accepting Wheeldon's expert's evidence as to the cause of the fire;
  • making numerous findings of fact, about issues such as Wheeldon's maintenance of its machinery and storage of materials; and
  • ultimately rejecting each of Millennium's reasons for declinature and granting the judgment which Wheeldon sought.

Millennium sought permission to appeal.

Millennium's application for permission to appeal

Millennium relied on eight grounds of appeal, challenging:

  • the trial judge's evaluation of the expert evidence;
  • the trial judge's findings of fact; and
  • the trial judge's interpretation of the policy provisions.

Coulson LJ decided that Millennium's application raised wider points of principle relating to the scope of appeals – seemingly influenced by an influx of similar applications this year. For that reason, he heard oral arguments on Millennium's grounds of appeal and delivered a written judgment.

Coulson LJ firmly rejected all eight of Millennium's grounds, effectively finding nothing wrong with the trial judge's evaluation of the factual and expert evidence, or his application of that evidence to the questions of law he had determined.

Of wider interest was that Coulson LJ took the opportunity to restate the relevant principles that apply to appeals.

The principles applicable to appeals

The CPR test

The test which judges must apply when considering whether or not to grant permission to appeal is set out in rule 52.6(1), as follows:

"permission to appeal may be given only where –

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason for the appeal to be heard"

Appeals regarding a judge's findings of fact

Coulson LJ summarised the previous authorities of Fage v ChobaniHenderson v Foxworth and Grizzly Business v Stena Drilling, and concluded that the hurdle for a party seeking to overturn a trial judge's finding of fact on appeal is a very high one. The finding must be one "that no reasonable judge could have reached". Coulson LJ suggested that there were probably only two situations where that might occur:

  1. where there was "no evidence at all" to support the judge's finding; or
  2. where the judge "plainly misunderstood the evidence" in arriving at the finding.

Appeals regarding a judge's evaluation of expert evidence

Coulson LJ gave prospective appellants no further comfort when discussing appeals relating to a trial judge's evaluation of expert evidence. 

Whilst he acknowledged that an appellate court would be able to look at the expert's written reports as part of a possible reconsideration of the expert evidence, it should still be "very slow to intervene", given that the trial judge's evaluation of the expert evidence will be wrapped up with their wider evaluation.

Appeals from the TCC

As a former TCC judge hearing an application to appeal a TCC judgment, it is unsurprising that Coulson LJ focused on appeals from the TCC.  He concluded that appeals from the TCC are likely to be more difficult than from other Courts because they are likely to involve:

  • findings of fact in an area of specialist expertise (Virgin Management v de Morgan Group (1994) 68 BLR 26.);

  • interlocking assessments of factual and expert evidence; and

  • detail which is "difficult or impossible" to reconsider on appeal.

However, Coulson LJ clearly intended his clarification to be of broader assistance, saying that:

"I do not consider that different rules apply to applications for permission to appeal from the TCC, as compared with any other part of the High Court … I see no reason why these principles should not apply equally to appeals from any other specialist court".

Comment

This case provides useful clarity as to when the disgruntled loser of a trial can appeal the judgment based on the trial judge's findings of fact and/or evaluation of expert evidence.  It does not, however, contain any new law, nor does it discuss the second limb of the CPR test ("some other compelling reason" for an appeal).

It is clear that the hurdle to overcome in such cases is a very high one, particularly so where the issues are specialist, interlocking or complex – which is commonly the case in the TCC.

The case reiterates the importance of 'getting it right first time' at the trial, ensuring that all of the arguments and documents are in front of the trial judge and that the witnesses (both factual and expert) are ready to cover all the areas on which evidence will be required.  As Lewison LJ said in Fage (cited by Coulson LJ) "The trial is not a dress rehearsal.  It is the first and last night of the show". 

Contact

For more information please contact Chris Burns, Senior Associate DD +44 161 603 4969 or email Chris.Burns@dwf.law

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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