Guidance on Appeals

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Guidance on Appeals

Published 17 December 2018

Guidance on appeals from the TCC: Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [2018] EWCA Civ 2403

A recent Court of Appeal decision of Coulson LJ in Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd draws together and restates the principles for appeals from the Technology and Construction Court (TCC). 

This is a useful reminder from the Court of Appeal that they will not interfere with factual findings and expert evaluations.

The facts

Wheeldon Brothers Waste Ltd (Wheeldon) owned a waste plant, which was damaged by fire in 2014.  Wheeldon’s insurer, Millennium Insurance Company Limited (Millennium), refused to indemnify it for the loss due to alleged breaches of a number of the conditions precedent in the Policy.   After a trial that lasted 5 days in the TCC, Wheeldon obtained a declaration that it was entitled to be indemnified by Millennium.  

Millennium sought permission to appeal the judgment on 8 grounds, the majority of which related to the trial judge’s findings of fact and his assessment of the expert evidence.  Coulson LJ refused permission to appeal and took the opportunity to restate the principles relating to appeals from the TCC.  

Principles for appeals on questions of fact

In the leading Judgment, Coulson LJ summarised the general approach of an appellate court to appeals on finding of fact and on matters of expert evidence, and then considered whether that approach applies to appeals from the TCC.  The following principles are recited and receive approval in the judgment:

  • The test for permission to appeal is contained in CRP rule 52.6(1). Permission may be given only where the court considers that the appeal would have a real prospect of success,  or there is some other compelling reason for the appeal to be heard.
  • An appellate court will interfere with findings of fact only if the finding is one that no reasonable judge could have reached. In practice, that will only occur whether 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.
  • Expert evidence adduced at trial must be approached by an appellate court with similar caution, since the evaluation of expert evidence is likely to be bound up with a wider evaluation of matters of fact.
  • The decisions of the TCC have special characteristics which affect the readiness of the Court of Appeal to consider them on appeal because they are likely to involve detailed findings of fact in an area of specialist expertise; and/or lengthy and interlocking assessments of both factual and expert evidence; and/or factual minutiae which is difficult or impossible to reconsider on appeal.

Key points

The key point from this Judgment is that where an appeal from the TCC (or other specialist court) involves questions of fact or expert evidence, it may be harder to obtain permission to appeal than it would be in other, non-specialist cases. 

Prospective appellants will have to cross the “high hurdle” of showing that the trial judge made findings that no reasonable judge could have reached, in circumstances where appellate courts are reluctant to unpick those findings.

Authors

Mark Roach

Mark Roach

London - Walbrook

+44 (0)20 7894 6314