[2025] EWHC 1680 (KB)

Under CPR r. 52.21 every appeal is a review of the decision of the lower Court, not a rehearing, unless the Court decides otherwise (or a Regulation or Act provides that it is a rehearing) and will only be granted if the decision below was wrong or unjust due to a serious procedural or other irregularity.

This appeal is restricted to the evidence before the lower Court unless this Court grants permission under CPR r. 52.21(2). The decision to grant permission is informed by the three grounds enunciated in Ladd v Marshall [1954] 1 W.L.R. 1489 (CA). New evidence may be allowed in when it was: (1) not obtainable with reasonable diligence before the lower Court, (2) would have an important influence on the result and (3) is apparently credible, though not incontrovertible.

I take into account the decisions in Henderson v Foxworth [2014] UKSC 41, per Lord Reed at para. 67 and Grizzly Business v Stena Drilling [2017] EWCA Civ. 94, per Longmore LJ at paras. 39-40 and Deutsche Bank AG v Sebastian Holdings [2023] EWCA Civ. 191, by Lord Justice Males at paras. 48 - 55, to the effect that any challenges to findings of fact in the Court below have to pass a high threshold test. The Appellant needs to show the Judge was wrong in the sense that there was no sufficient evidence upon which the decision could have been reached or that no reasonable Judge could have reached that decision, or that the Judge took into account an irrelevant matter or failed to take into account a material and relevant matter. Two deferential principles are generally applied. Firstly, where the trial judge heard and saw the evidence being given live over the course of the trial he/she was better placed to assess the evidence than the appellate court is, having only the transcript and documents. Secondly, there is a generous ambit for disagreement allowed on such findings. The threshold for appeals against findings of fact was summarised by Lord Justice Lewison in Volpi v Volpi [2022] EWCA Civ. 464, [2022] 4 WLR 48, at paras. 2-4 and 52:

Appeals from case management decisions have a high threshold test. In an appeal in respect of the discretionary exercise of a Judge’s case management powers, the approach of the appellate court is set out in the following authorities. In G & G (Minors’ Custody Appeal) [1985] 1 WLR 647, per Lord Fraser at 652:

“The appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution, which the Court of Appeal might, or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.”

In Powell v Pallisers of Hereford Ltd [2002] EWCA Civ. 959 per Potter LJ at para. 11:

“This was, of course, a case management decision involving the exercise of the judge's discretion of a kind with which this court has repeatedly expressed reluctance to interfere; indeed it has been emphasised that it is wrong to do so unless it can be clearly demonstrated that the overriding objective will not be observed or maintained if the decision is permitted to stand.”

In Royal & Sun v T & N [2002] EWCA Civ. 1964, Chadwick LJ enunciated the deferential principle thus:

“37.

… these are appeals from case management decisions made in the exercise of his discretion by a judge who, because of his involvement in the case over time, had an accumulated knowledge of the background and the issues which this Court would be unable to match. The judge was in the best position to reach conclusions as to the future course of the proceedings. An appellate Court should respect the judge's decisions. It should not yield to the temptation to “second guess” the judge in a matter peculiarly within his province.

38.

I accept, without reservation, that this Court should not interfere with case management decisions made by a judge who has applied the correct principles, and who has taken into account the matters which should be taken into account and left out of account matters which are irrelevant, unless satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

In Serco Ltd (trading as Serco Docklands) v National Union of Rail, Maritime and Transport Workers and others[2011] EWCA Ci.v 226 (in relation to the exercise of a discretion in the context of injunctions) per Elias LJ at para. 14:

“The function is one of review, and in the absence of further material evidence invalidating the exercise of discretion by the first instance judge, the Court of Appeal should only interfere where the judge had misdirected himself or reached a conclusion which is unsustainable on the evidence before him.”

In Mitchell v News Group Newspapers Ltd [2013] EWCA Civ. 1537, at para. 52 the Master of the Rolls said:

“We start by reiterating a point that has been made before, namely that this Court will not lightly interfere with a case management decision. In Mannion v Ginty [2012] EWCA Civ. 1667 at [18] Lewison LJ said: “it has been said more than once in this Court, it is vital for the Court of Appeal to uphold robust fair case management decisions made by first instance judges.”

In Global Torch v Apex [2014] 1 WLR 4495 (UKSC), Lord Neuberger summarised the power thus:

“13.

… The essential question is whether it was a direction which Vos J could properly have given. Given that it was a case management decision, it would be inappropriate for an appellate court to reverse or otherwise interfere with it, unless it was “plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree” …”