CH-2025-BRS-000001 - [2025] EWHC 2373 (Ch)

By virtue of CPR rule 52.21(1), an appeal is limited to a review of the decision of the court below, unless the court considers that in the circumstances of a particular appeal it would be in the interests of justice to rehear the case: Audergon v La Baguette Ltd [2002] EWCA Civ 10, [83]. There being no need for a rehearing in this case, this appeal is a review. The appellant in his skeleton argument adopts the same position.

A second point is that rule 52.21(3) provides that the appeal court will allow the appeal where the decision was (a) wrong, or (b) unjust, because of serious procedural or other irregularity in the proceedings below. Here “wrong” in the first limb means wrong in law, wrong in fact, or wrong in the exercise of discretion. As to the second limb, in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, [33], Brooke LJ (with whom Lord Woolf MR and Peter Gibson LJ agreed) said:

“So far as the second ground for interference is concerned, it must be noted that the appeal court only has power to interfere if the procedural or other irregularity which it has detected in the proceedings in the lower court was a serious one, and that this irregularity caused the decision of the lower court to be an unjust decision.”

Returning to the first limb of rule 52.21(3), whilst the appeal court will overturn a decision below which was wrong in law, it will not lightly overturn a judge’s findings of fact or evaluative judgments. In Volpi v Volpi [2022] 4 WLR 48, [2], Lewison LJ (with whom Males and Snowden LJJ agreed) said:

“(i)

An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.

(ii)

The adverb ‘plainly’ does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.”

And, in FAGE UK Ltd v Chobani UK Ltd [2014] EWCA 5, Lewison LJ (with whom Longmore LJ agreed) said:

So far as concerns an appeal against the exercise of a discretion in the court below, in G v G [1985] 1 WLR 647, HL, Lord Fraser said (at 651-652):

“ … it is of the essence of [a judicial] discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

More recently, in R (Thornton Hall Hotel Limited) v Wirral Metropolitan Borough Council [2019] EWCA Civ 737, [2019] PTSR 1794, the Court of Appeal was dealing with an appeal against a decision to extend time. The court said:

“21.

… (8) It being a matter of judicial discretion, this court will not interfere with the first instance judge's decision unless it is flawed by a misdirection in law or by a failure to have regard to relevant considerations or the taking into account of considerations that are irrelevant, or the judge's conclusion is clearly wrong and beyond the scope of legitimate judgment … ”

A similar principle applies to appeals against case management decisions. Thus, in Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] 1 WLR 2295, SC, Lord Neuberger, with whom Lords Sumption, Hughes and Hodge agreed, said:

“13.

… it would be inappropriate for an appellate court to reverse or otherwise interfere with [a case management decision], unless it was ‘plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree’.”

(It appears that Lord Clarke, though dissenting in the result, also agreed with this part of Lord Neuberger’s judgment: see at [47].)

Thirdly, the court below must give reasons for its decisions: Bassano v Battista [2007] EWCA Civ 370. But these must be read on the assumption that the judge knew how to perform the judicial functions and the matters which had to be taken into account: Piglowska v Piglowska [1999] 1 WLR 1360, 1372. And, as Griffiths LJ said in Eagil Trust Co Ltd v Piggott-Brown [1985] 3 All ER 119, 122, cited many times since,

“ … there is no duty on a judge in giving his reasons, to deal with every argument presented by counsel in support of his case. It is sufficient if he shows the parties and, if needs be, the Court of Appeal the basis on which he has acted … ”

The same point was made by Lord Phillips MR, giving the judgment of the Court of Appeal, in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, at [17], where the citation from Griffiths LJ in Eagil Trust was set out, prefaced with the words

“As to the adequacy of reasons, as has been said many times, this depends on the nature of the case … ”

And, at [19], the court said that the duty to give reasons

“ … does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained.”

Fourthly, the appeal court does not easily allow a new point to be raised which was not raised below. In Singh v Dass [2019] EWCA Civ 360, Haddon-Cave LJ (with whom McCombe and Moylan LJJ agreed) said:

“16.

First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.

17.

Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial …

18.

Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs … ”