Appealing findings made by the TCC: guidance from the Court of Appeal
Published by Thomson Reuters Practice Law Construction Blog.
In 2014, a waste plant owned by Wheeldon Brothers Waste Ltd was damaged by fire. Its insurer, Millennium Insurance Company Ltd, declined to indemnify the company in relation to the fire, citing alleged breaches of a variety of policy terms. At first instance, Mr Jonathan Acton Davis QC, sitting as Deputy High Court judge, ruled that Wheeldon was entitled to the indemnity.
Millennium sought permission to appeal this decision on eight grounds. Fatally, the majority of the grounds concerned the first instance judge’s findings of fact and/or his assessment of the expert evidence. In dismissing the application in its entirety, Coulson LJ undertook a review of relevant case law and restated the principles governing appeals from the TCC.
Starting point for an appeal
The starting point is the gateway test set out at CPR rule 52.6(1):
“(1) … 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.”
CPR 52.6 not the “whole story”
However, the court observed that “from a practical perspective, that is not quite the whole story”.
First, appellate courts should not interfere with a trial judge’s finding of fact, nor the evaluation of that fact or inferences drawn from the same, unless that finding was one that no reasonable judge could have reached. Coulson LJ held that 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.”
A losing party may well be of the view that the judge should have made different findings of fact and/or should have preferred the evidence of their expert. This falls far short of the relevant test.
Second, a first instance judgment is unlikely to exhaustively list all the evidence on which a certain factual finding has been made. Accordingly, an appellate court cannot properly analyse the rationale and/or merits of any particular factual finding. To do so would be to “island hop”, ignoring the majority of the “sea of evidence” adduced at trial. This is the case even when a transcript is made available, as this still does not capture the manner in which the live evidence was given.
As was held by May LJ in Thomson v Christie Manson & Woods Ltd and others  EWCA Civ 555, this principle applies equally to findings in relation to expert evidence:
“… 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.”
Third, appellate courts should take into account the TCC’s specialist expertise. The TCC is particularly well placed to assess technical evidence.
Further (as was highlighted in Skanska Construction UK Ltd v Egger (Barony) Ltd [2002 ] EWCA Civ 1914), TCC first instance judgments will frequently be written on the basis of assumed specialist knowledge on the part of the parties and their advisers. Accordingly, when viewed by a non-specialist court, the reasoning of the trial judge may not be readily apparent and/or may be misinterpreted.
Fourth (and as was held in Thomson and Yorkshire Water Services Ltd v Taylor Woodrow Construction Northern Ltd  EWCA Civ 894), the level of technicality and complexity of a case should be inversely proportionate to an appellate court’s willingness to grant permission to appeal.
Coulson LJ confirmed that both Skanska and Yorkshire Water are still good law.
While not novel, Coulson LJ’s guidance provides a very helpful summary of the relevant principles, and is therefore an invaluable resource for legal representatives and clients alike. Any party dissatisfied with a first instance TCC decision would be wise to reach for this judgment before engaging in further litigation.
Ben Quiney QC acted for the successful party, Wheeldon Brothers Waste Ltd, both at first instance and on appeal.
Written by Juliet Stevens