Weatherburn v Joplings (A Firm)

Permission to appeal should be refused where the proposed appeal merely seeks to reargue expert evidence and factual findings that were carefully considered at trial and were reasonably open to the judge. An appellate court will not intervene simply because another interpretation of technical reports is arguable. Where the trial judge has evaluated the evidence, including subsequent technical evidence, and reached conclusions supported by it, the absence of a different conclusion does not establish an appealable error. A negligence claim based on allegedly defective valuation advice also requires loss attributable in law to the breach; loss that would have occurred even if correct information had been provided is not recoverable.

Three purchasers brought claims against valuers of newly constructed properties in Ripon affected by known gypsum-related subsidence. The Technology and Construction Court, Leeds District Registry, tried liability and dismissed the action against Joplings, while finding breaches of duty by the other valuers but no loss attributable to those breaches.

The purchasers renewed applications for permission to appeal. They argued that the trial judge had misunderstood the Solmek geotechnical report and a later Cooper report concerning the Field View swallow hole, and had therefore wrongly concluded that the properties and access road were secure and that no relevant diminution in value had been established.

1. The applications were dismissed. No ground had been shown on which permission to appeal could properly be granted.
2. Lady Justice Arden held that the trial judge was entitled to reach his conclusions on the Cooper report. He had considered the report together with the further evidence that the recommended infilling and stabilisation works had been carried out, and evidence that the road was safe for ordinary traffic. There was no evidential basis for concluding that his findings were ill-founded or contrary to the weight of the evidence.
3. The judge was also entitled to interpret the Solmek report as indicating that the properties were outside the relevant zone of influence and that a raft foundation would provide protection against possible future gypsum movement. The report had not been qualified by fresh geotechnical evidence, and the experts had not suggested the interpretation advanced on appeal.
4. The proposed appeal therefore amounted to a disagreement with factual and evidential conclusions reached after a lengthy trial. Such disagreement did not disclose a realistic basis for appellate intervention. Lord Justice Simon Brown agreed, describing the trial judgment as careful and cogent and finding no persuasive basis for asserting that either report had been misunderstood.
5. The applications were refused. The applicants were ordered to pay the respondents’ costs, subject to detailed assessment.

• Court of Appeal (Civil Division): Renewed applications for permission to appeal were dismissed.
• High Court, Queen’s Bench Division, Technology and Construction Court, Leeds District Registry: His Honour Judge S P Grenfell dismissed the claims after a trial on liability.