KA-2024-BHM-000008 - [2025] EWHC 2093 (KB)

Conclusions

I have dealt with the issues that have been raised in this appeal in considerable detail. I have, I believe, dealt with every one of the grounds raised by Mr Pennock on behalf of the Appellant. They do not persuade me, singly or together, that the appeal should be allowed. But I remind myself, in any event, that the judge had the benefit of hearing all of the evidence, which I did not. As Lewison LJ said in the Fage case, cited in Wheeldon, all an appellate judge does is a form of island hopping. Even if one or two of the points raised by Mr Pennock had some force, I would have been reluctant to consider allowing the appeal. This was a careful and impressive judgment which addressed all of the main issues in the case. The judge was better placed than me to consider all of the evidence. The irreducible fact is that the judge accepted the expert evidence of the Respondent’s key witness and preferred it over the evidence of the Appellant’s key expert witness. I also bear in mind what was said in Fage to the effect that a trial is not a dress rehearsal. The purpose of an appeal is not to allow the losing party an opportunity to rehearse the same arguments before a different judge in the hope that the different judge will reach a different conclusion.

This has been in substance the hearing of an application for permission to appeal, with appeal to follow if successful. In reality, I have heard and determined the full appeal. In those circumstances, the question whether I should refuse permission to appeal, or should grant permission and then dismiss the appeal, is academic. I have considerable doubt as regards whether the arguments advanced on behalf of the Appellant surmount the threshold of a real prospect of success, but I have decided to proceed in accordance with the reality of the situation.

Accordingly, I grant permission to appeal but dismiss the Appellant’s appeal.