Walkinshaw & Ors v Diniz

At the permission stage, the court should not finally determine arguable points of contractual construction or breach. Permission may properly be granted where there is a serious point which should be considered on the appeal. The same applies to an amendment issue where the judge may have applied an inappropriate test, including by treating Henderson v Henderson as governing the application for amendment itself. Granting permission does not indicate that the proposed grounds will succeed.

The claimants sought permission to appeal from a decision of the High Court, Queen’s Bench Division, Commercial Court, before Mr Justice Tomlinson. Permission had initially been refused on paper by Lord Justice Clarke. The proposed appeal concerned the construction of clause 7.1, whether breach could be established, a letter-related issue, and an amendment application. The central question was whether these matters should be allowed to proceed to a full appeal despite the court’s reservations about their prospects.

1. Permission granted. The court considered that there was an arguable point on the construction of clause 7.1. It gave no encouragement as to the prospects of success, but held that it would be inappropriate to determine the point finally on an application for permission.
2. The same approach applied to the question whether breach could be established even on the claimants’ construction. That issue should proceed to the appeal rather than be conclusively ruled upon at the permission stage.
3. The letter point was also permitted to proceed because the matter was going to appeal in any event.
4. As to amendment, the judge may have applied the wrong test if he had treated Henderson v Henderson as governing the application for permission to amend itself. Permission was therefore granted on that ground also.
5. The order was that permission to appeal be granted, with the costs of the permission application to be costs in the appeal.

• Court of Appeal (Civil Division): Permission had initially been refused on paper by Lord Justice Clarke. The present court granted permission to appeal and directed that the costs of the application be costs in the appeal.
• High Court, Queen’s Bench Division, Commercial Court: The appeal arose from a decision of Mr Justice Tomlinson.