Case Nos: CL-2022-000294; CL-2022-000557; - [2025] EWHC 2529 (Comm)

Permission to Appeal

War Risks Insurers sought Permission to Appeal on 23 Grounds, which were supported by Submissions running to 116 paragraphs, dated 27 June 2025.

Chubb sought Permission to Appeal on 5 Grounds, supported by a Skeleton Argument of 14 paragraphs, dated 27 June 2025.

Submissions opposing Permission to Appeal were served on behalf of AerCap, DAE/Falcon, Merx, Genesis, HFW AR Insurers and GAR Insurers, and a letter was sent on behalf of Swiss Re opposing Permission to Appeal.

I have considered all of the submissions both for and opposing Permission to Appeal.

The submissions opposing Permission to Appeal strongly criticised War Risks’ Insurers’ Grounds, contending that they amounted to attempts to relitigate what was determined at trial, and to throw the kitchen sink at the application for Permission to Appeal, of a sort deprecated in LZLabs GmbH & Others v IBM UK Ltd [2025] EWCA Civ 842.

Reference was in particular made to what was said by Coulson LJ at [19]-[25] of his judgment in that case, as follows:

The starting point must be to identify the proper approach to PTA in this sort of case. There are a number of particular points to be made, none of which were addressed in the appellants’ skeleton argument.

First, appeals on the judge’s fact finding will not generally be entertained by this court save in limited and well-defined circumstances. As Lewison LJ put it in Fage UK Limited & Another v Chobani UK Limited & Another [2014] EWCA Civ 5, “the trial is not a dress rehearsal. It is the first and last night of the show. 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. In making his decision a trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellant court will only be island hopping.” I consider that each of those warnings must apply a fortiori where the first instance trial took 33 days and where so many of the individual complaints supporting the application for PTA are criticisms of the judge’s extensive fact-finding.

Secondly, to the extent that the appellants argued that some of their criticisms arise out of the judge’s evaluation of the facts, rather than her fact-finding per se, I do not believe that that helps them very much. That is again because the threshold for challenge is high. At [76] of the judgment in Re Sprintroom Limited [2019] EWCA Civ 932; [2019] B.C.C. 1031, this court said:

So, on a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided, ‘such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion’”.

Thirdly, one of the reasons for the length of time of this trial was the amount of expert evidence. The judge made copious references to that expert evidence in her judgment. In Thompson v Christie Manson & Woods Limited & others [2005] EWCA Civ 555, May LJ warned that, since the evaluation of expert evidence was likely to be bound up with a wider evaluation of matters of fact, an appellate court will be very slow to intervene in findings based on expert evidence. So he said that, whilst individual points may be amenable to appellate evaluation, “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 jigsaw, depended on the interlocking of a very large number of individual pieces, each the subject of expert evidence that the appellate court has not heard.” Again, the ‘jigsaw’ analogy applies directly here.

Fourthly, this is an appeal from the Technology and Construction Court. There have been a number of authorities concerned with the practical difficulties of appealing against decisions of such a specialist tribunal. I gathered them together in Wheeldon Brothers Waste Limited v Millennium Insurance Company Limited [2018] EWCA Civ 2403 at [12]-[16]. I then summarised the applicable principles at [17] as follows:

In those circumstances, I consider that the applicable principles can be summarised as follows:

The CPR provides a single test for applications for permission to appeal which covers the entirety of the High Court, including the TCC (Virgin Management).

Any application for permission to appeal on matters of fact or evaluations of expert evidence must surmount the high hurdle identified in Fage, Henderson, Thomson and Grizzly Business.

In addition, because a judgment in the TCC is likely to involve i) detailed findings of fact in an area of specialist expertise (Virgin Management and Skanska) and/or ii) lengthy and interlocking assessments of both factual and expert evidence (Skanska and Thomson) and/or iii) factual minutiae which is difficult or impossible sensibly to reconsider on appeal (Skanska), the Court of Appeal will be reluctant to unpick such a judgment (Thomson), with the inevitable result that obtaining permission to appeal on such matters in a TCC case may be harder than in other, non-specialist types of case (Virgin Management, Skanska and Yorkshire Water).”

Fifthly, it is rare that an appeal court will be faced with – let alone grant – such a ‘kitchen sink’ application for PTA as this one, where every adverse finding is in issue. The applicants have had every opportunity to slim down their application, or to focus on the fundamental points of principle which they assert arise in this case. They have politely but firmly declined to take that course. Thus it is for the court to consider this application as a whole, in circumstances where many of the individual grounds are, bluntly, hopeless.

I consider these five separate but overlapping points inevitably combine to demonstrate the height of the hurdle that the applicants need to surmount in this case in order to obtain PTA. They all point very firmly away from granting PTA. I refer to these five points collectively below as “the particularly high permission hurdle in this case.””

Since the written submissions on Permission to Appeal were served, DAE and Merx have settled their claims against War Risks Insurers. This is a matter of some importance, as the position of those parties is the subject of significant consideration in the Judgment, and the wordings of the parties who have not settled were not identical to those which have. The settlements have had the effect of removing some of the Grounds which might perhaps have been regarded as amongst the more promising candidates for Permission to Appeal. The whole of Section E (Grounds E1-E7) related only to DAE/Falcon and Merx.

As to the other Grounds in War Risks Insurers’ application, I have carefully considered them against the tests for Permission to Appeal, and in light of the various points made in LZ-Labs GmbH v IBM. My view is that the Grounds raised by War Risks Insurers, and by Chubb, do not stand a realistic prospect of success. I will say, very briefly, why I have formed that view.

As to Section A of War Risks Insurers’ Grounds (A1-A3), Ground A1 involves in part a challenge to findings as to the admissible factual background, which involved findings based on oral witness and expert evidence. There is a high hurdle to overcome in such a challenge. Otherwise, Ground A1 involves a contention that the construction I placed on the relevant Contingent Coverages was wrong, even in the absence of any market understanding which might have assisted War Risks Insurers’ case. I do not consider that those arguments stand a realistic prospect of success. Ground A2 would arise only if Permission to Appeal was given on Ground A1, and in any event the argument that the leases did not require composite insurance policies stands, in my view, no realistic prospect of success. Ground A3 is, in my view, very optimistic, for the reasons given in paragraph 326 of the Judgment.

As to Section B of War Risks Insurers’ Grounds of Appeal, Ground B1 faces real difficulties in the case of the AerCap and Genesis policies. I do not consider that it stands a realistic prospect of success. Ground B2 could only arise if War Risks Insurers were right on Ground B1. If the ‘triggers’ in the AerCap and Genesis policies had the meanings I found, it could not be argued with any prospect of success that the court was not in a position to determine whether they had been satisfied.

In relation to Section C of War Risks Insurers’ Grounds, I do not regard Ground C1 as standing any realistic prospect of success. It involves the contention that it is wrong to say that an aircraft is lost if, on the balance of probabilities, the insured has been permanently deprived of it. That is a difficult contention. Ground C2, in my view, stands no realistic prospect of success for the reasons given in paragraphs 539-540 of the Judgment and paragraphs 24-25 of AerCap’s submissions in relation to Permission to Appeal. Grounds C3 and C4 are in essence challenges to findings of fact. Consideration was given to the commercial lifetime of the aircraft, in the sense that it was found that there was, on the balance of probabilities, permanent deprivation, even if the commercial lifetime of the aircraft was lengthy. The court was aware that commercial lifetimes of some aircraft can be long (see for example Judgment, [777]). The assessment of the probability of non-return in the future was made, as are most assessments of what will happen in the future, on the basis of what had in fact happened by the date at which the assessment was taken to be made. There was a clear evidential basis for the assessment (see Judgment, [907], and see also paragraphs 34-37 of GAR Insurers’ Submissions on Permission to Appeal). Ground C5 goes nowhere. Even if War Risks Insurers’ analysis were correct, and it was necessary to look at whether there had been a loss as at the date of AerCap’s Claim Form, there had been, and that is what the court found (see Judgment, [912]).

Grounds D1 and D2 of War Risks Insurers’ Grounds essentially involve challenges to findings of fact. I do not consider that they stand a realistic prospect of success. Ground D3 would arise only if the case were one of concurrent independent causes, but the court has made a factual finding that that is not the case (see Judgment, [928]).

Ground F1 stands, in my view, no realistic prospect of success for the reasons set out in Judgment, [994]-[996].

Grounds G1 and G2 equally stand no realistic prospect of success, in my opinion, for the reasons given in paragraphs 30-33 of AerCap’s submissions.

Chubb’s first ground (as it is expressed in Chubb’s submissions) or group of grounds (paragraphs 1-4 of its ‘Grounds of Appeal’ document), do not stand a realistic prospect of success, including for the reasons identified in paragraphs 37-41 of AerCap’s submissions.

Chubb’s second ground (or paragraph 5 of its ‘Grounds of Appeal’ document) is, in my view, hopeless, and it is a construction which would have a commercially absurd consequence: see Judgment, [339]-[340].

I do not consider that there is any other compelling reason why there should be an appeal. On the contrary, it is desirable, if there are no points which have a realistic prospect of success, that there should be finality as soon as possible, so that the market knows where it stands, not least because of the forthcoming OP trial.