Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd; Note
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson |
| Judgment Date | 29 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2403 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A1/2018/1102 |
| Date | 29 October 2018 |
[2018] EWCA Civ 2403
Lord Justice Coulson
Case No: A1/2018/1102
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
TECHNOLOGY & CONSTRUCTION COURT
Jonathan Acton Davis QC sitting as a High Court Judge
HC-2016-000303
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Quiney QC (instructed by Trowers & Hamlin LLP) for the Claimant/Respondent
Graham Eklund QC & Nicholas Broomfield (instructed by Mills & Reeve LLP) for the Defendant/Applicant
Hearing Date: Thursday 18th October 2018
Introduction
This is an application by Millennium Insurance Company Limited (“Millennium”) for permission to appeal against the judgment of Mr Jonathan Acton Davis QC (sitting as a Deputy High Court Judge) in a fire case heard earlier this year in the Technology and Construction Court (“TCC”). Following a fire at their waste processing plant in Ramsbottom (“the premises”), Wheeldon Brothers Waste Limited (“Wheeldon”) sought a declaration that they were entitled to be indemnified by Millennium under their contract of insurance. Millennium's case was that they were entitled to refuse to indemnify Wheeldon because of their alleged breaches of a number of the policy's conditions precedent.
The judge heard factual and expert evidence in a trial that lasted 5 days. In the course of a judgment produced just over a month after the end of the trial, and which ran to 148 paragraphs, the judge rejected each of the various reasons for refusing the indemnity put forward by Millennium. His judgment in favour of Wheeldon is at [2018] EWHC 834 (TCC).
By an Appellant's Notice dated 10 May 2018, Millennium sought permission to appeal that judgment. There are eight separate grounds of appeal. The application is supported by a skeleton argument that is 25 pages in length. The majority of the grounds concern the judge's findings of fact and his assessment of the expert evidence. Having considered the application on paper, it seemed to me that it raised a wider issue of principle as to the proper scope for appeals on such matters from the TCC. I therefore adjourned the application to be heard orally. Millennium put in a further skeleton argument on the law and Wheeldon produced one composite skeleton argument dealing with the law and the eight grounds of appeal.
For the reasons set out below, 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. On the other hand, because TCC cases often involve complex and interlinked findings of fact and assessments of expert evidence, it is inevitable that wide-ranging applications for permission to appeal against such findings and assessments will rarely be successful.
The Applicable Principles
The Relevant Test
The relevant test for permission to appeal is set out at CPR r.52.6(1):
“(1) Except where rule 52.7 applies, 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.”
Prior to the CPR, different and more restrictive rules applied to findings of fact by Official Referees. Indeed, for most of the last century, appeals from any decision of fact by an Official Referee were prohibited altogether, although this prohibition was eventually qualified to exclude questions of fact relevant to fraud or breaches of professional duty. None of those rules and restrictions now apply. I agree with Mr Eklund QC that the only applicable test on an application for permission to appeal from the TCC is that set out in r.52.6(1). But I also agree with Mr Quiney QC that, from a practical perspective, that is not quite the whole story.
Appeals on Findings of Fact
The general approach of an appellate court to appeals on questions of fact was memorably summarised by Lewison LJ in Fage UK Limited & Another v Chobani Limited & Another [2014] EWCA Civ 5. In paragraph 114, he said:
“Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1977] RPC1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23 [2007] 1 WLR 1325; Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] UKSC 58 [2013] 1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include
i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
ii) The trial is not a dress rehearsal. It is the first and last night of the show.
iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”
Shortly thereafter, in Henderson v Foxworth Investments Limited [2014] UKSC 41, Lord Reed said at paragraph 67:
“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
Although I was referred to a number of other cases dealing with the proper approach of an appellate court to appeals based on matters of fact, the only other authority to which reference should be made is Grizzly Business Ltd v Stena Drilling Ltd [2017] EWCA Civ 94. At paragraphs 39 and 40, Longmore LJ said:
“39. The parties were broadly agreed upon the relevant law in the light of the recent Supreme Court decisions of Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600 and McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 the latter of which cited with approval Hamilton v Allied Domecq Plc [2006] SC 221, para 85. In the latter case it was said:-
“If findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance.”…
We have also had regard to the last three reasons why appellate courts are warned not to interfere with findings of fact unless compelled to do so as enumerated by Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5…
40. There will be (and have been) rare cases where an appellate court is compelled to set aside findings of fact made by an experienced trial judge but we are far from convinced that that is the case here. None of the challenged findings can be said to be unsupported by the evidence and the decision is certainly not one that no reasonable judge could have reached. The case was not an easy one for the judge but he grappled with all the potential difficulties of the evidence and came to a conclusion which, we feel able to say (although our own opinion is immaterial) was probably correct.”
In short, to be overturned on appeal, a finding of fact must be one that no reasonable judge could have reached. In practice, that will usually occur only where there was no evidence at all to support the finding that was made, or the judge plainly misunderstood the evidence in order to arrive at the disputed finding.
Appeals on Matters of Expert Evidence
A first instance judge's assessment of, or evaluations based upon, expert evidence adduced at trial must be approached by an appellate court with similar caution. Whilst it has been said that a reconsideration of an expert's opinion may be slightly easier than a finding of fact, because the underlying report will be in writing (see Thomson v Christie Manson & Woods Limited & Ors [2005] EWCA Civ 555), the same case also provides a salutary warning that, since the evaluation of expert evidence is likely to be bound up with a wider evaluation of matters of fact, an appellate court will still be very slow to intervene. At paragraph 141 of his judgement in Thomson, May LJ said:
“…But, even accepting that individual points such as these are amenable to judicial appellate evaluation whatever the expert opinion, no appellate court should cherry pick a few such points so as to disagree with a composite first instance decision which, in the nature of a jig-saw, depended on the interlocking of a very large number of individual pieces, each the subject of oral expert evidence which the appellate court has not heard.”
Appeals from the TCC
In Virgin Management v de Morgan Group (1994) 68 BLR 26 at paragraphs 34 – 35, Sir Thomas Bingham MR said:
“Whether a ground will be regarded as having a reasonable prospect of success will of course depend on what...
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