KA-2024-000232 - [2025] EWHC 1681 (KB)

CPR 52.21(3) provides that the appeal court will allow an appeal where the decision of the lower court was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

In CPR 52.21(3)(a), “wrong” means that the court below (i) erred in law or (ii) erred in fact or (iii) erred (to the appropriate extent) in the exercise of its discretion: White Book 2025, at paragraph 52.21.5.

When a matter of judicial discretion is engaged, before an appeal court can interfere “it must be shown that the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that his decision is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scales”: Roache v News Group Newspapers Ltd [1998] EMLR 161 at 172, per Stuart-Smith LJ.

Put another way, the question is whether the judge’s exercise of discretion has “exceeded the generous ambit within which reasonable disagreement is possible”: Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 WLR 1311, CA at [32].

In a similar vein, in Broughton v Kop Football [2012] EWCA Civ 1743 at [51], Lewison LJ observed as follows:

“Case management decisions are discretionary decisions. They often involve an attempt to find the least worst solution where parties have diametrically opposed interests. The discretion involved is entrusted to the first instance judge. An appellate court does not exercise the discretion for itself. It can interfere with the exercise of the discretion by a first instance judge where he has misdirected himself in law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree. So the question is not whether we would have made the same decisions as the judge. The question is whether the judge’s decision was wrong in the sense that I have explained.”

These observations were approved by the Supreme Court in Global Torch Limited v Apex Global Management Limited (No 2) [2014] UKSC 64 at [13]; and see, to similar effect, BPP Holdings v HMRC [2017] UKSC 55 at [33].