CA-2025-000010 - [2025] EWCA Civ 933

Mr McCulloch, for Xinbo, correctly accepted that this was a case management decision involving the exercise of discretion, with which an appellate court will not lightly interfere. It will do so only if there has been an error of law, a failure to take relevant factors into account or a taking into account of irrelevant factors, or where the decision was otherwise “plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree”: Lewison LJ in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 at [51], approved by Lord Neuberger in Global Torch Ltd v Apex Global Management Ltd (No. 2) [2014] UKSC 64, [2014] 1 WLR 4495 at [13].

However, it is also the case that a failure to give any, or adequate, reasons may itself be a ground for appeal: Flannery v Halifax Estate Agencies Ltd (trading as Colleys Professional Services) [2000] 1 WLR 377. As Henry LJ explained in that case at pp.381-382, the duty to give reasons is a function of due process. Fairness requires that the parties, and especially the losing party, should be left in no doubt as to why they have won or lost. The extent of what is required will depend on the subject matter.

That principle was affirmed by Lord Phillips MR, giving the judgment of the court, in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605, [2002] 1 WLR 2409 (“English v Emery”) at [15]-[21]. As he said at [16]:

“We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost.”

While he made clear that there is no duty to address every argument, Lord Phillips also explained at [18] that:

“… it is necessary to have regard to the practical requirements of our appellate system. A judge cannot be said to have done his duty if it is only after permission to appeal has been given and the appeal has run its course that the court is able to conclude that the reasons for the decision are sufficiently apparent to enable the appeal court to uphold the judgment”.

He went on at [19]:

“It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision…”

In Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, [2019] 4 WLR 112 (“Simetra”) Males LJ provided the following additional guidance at [46], in the context of a challenge based on inadequately reasoned findings of fact:

“Without attempting to be comprehensive or prescriptive, not least because it has been said many times that what is required will depend on the nature of the case and that no universal template is possible, I would make four points which appear from the authorities and which are particularly relevant in this case. First, succinctness is as desirable in a judgment as it is in counsel’s submissions, but short judgments must be careful judgments. Second, it is not necessary to deal expressly with every point, but a judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Which points need to be dealt with and which can be omitted itself requires an exercise of judgment. Third, the best way to demonstrate the exercise of the necessary care is to make use of ‘the building blocks of the reasoned judicial process’ by identifying the issues which need to be decided, marshalling (however briefly and without needing to recite every point) the evidence which bears on those issues, and giving reasons why the principally relevant evidence is either accepted or rejected as unreliable. Fourth, and in particular, fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it.”

In English v Emery the court also recommended at [25] that, where there is a challenge based on an inadequacy of reasoning, the judge should be given an opportunity to provide additional reasons. That was reiterated by Munby LJ in Re A (Children) (Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205, [2012] 1 WLR 595 at [16], where he said that it was the responsibility of the advocate to draw the judge’s attention to any material omission from the judgment, including any perceived lack of reasons. That appears not to have been done in this case, the application for permission to the judge being confined to an argument that the judge’s conclusion was wrong.