King & Anor v Technology Piling Ltd & Ors

On a renewed application for permission to appeal, a proposed ground should be permitted where it has a real prospect of success. The small amount in issue is not, by itself, a sufficient reason to refuse permission, particularly where permission has already been granted on a related issue. Fresh evidence after trial and judgment requires sufficient justification for the earlier omission. The court must also consider the likely need to reopen evidence and the resulting duplication and costs. An appellate court will not interfere with that discretionary decision where the judge applied the correct approach and made no misdirection.

The claimants owned a property where underpinning works had been carried out by Technology Piling Ltd. After terminating the contractor, they sued the contractor and the designer and supervisor of the works. The trial was principally concerned with the assessment of damages.

The judge held that the termination was justified, assessed the repair costs by reference to historic costs with an uplift, and credited the defendants with sums due to the contractor, together with interest. The claimants had already obtained permission to appeal on general damages. They renewed their application for permission on the treatment of the credit sum and on fresh evidence concerning possible testing of the existing piles by the local authority.

Lord Justice Dyson delivered the judgment, with Mr Justice Astill agreeing. The application was allowed in part.

1. Credit for the unpaid contract sum. The proposed argument that the credit should receive the same building-cost uplift as the repair costs had a real prospect of success. The relatively small amount involved did not justify refusing permission, especially because permission had already been granted on the general damages issue and the additional point was short. Permission to appeal was extended to this ground.
2. Fresh evidence. The proposed evidence concerned the local authority’s likely requirement that the existing piles be tested before use. The trial judge had found no sufficient justification for the claimants’ failure to address that issue at trial. He had also considered that admitting the evidence could require substantial matters to be reopened, cause duplication in the evidence, and increase costs.
3. Appellate review of discretion. The Court of Appeal held that the judge had adopted the correct approach to the late application for fresh evidence. There was no misdirection, and the exercise of discretion was beyond criticism. Permission to advance that ground was refused.

1. Court of Appeal (Civil Division): On 25 July 2001, the court allowed the renewed application in part. Permission to appeal was extended on the credit and interest point but refused on the fresh-evidence ground.
2. Queen’s Bench Division, Bournemouth District Registry: The trial judge assessed damages after finding that the claimants were justified in terminating the underpinning contractor. No citation for that judgment is provided in the supplied text.