Skanska Construction Ltd v Egger (Barony) Ltd

The Court of Appeal has jurisdiction to determine appeals from an order or judgment of the High Court, not from reasons or findings which have no operative consequence. A party cannot appeal a bare factual finding where it is not reflected in the order and has caused no legal or practical effect. If such a finding may later affect costs, the first-instance judge remains free to reconsider it when making the costs order.

In complex construction litigation, the High Court held Egger responsible for delay in making interim payments and later assessed the resulting quantum. Egger sought permission to appeal findings concerning two quantum figures and a further comment that it had been responsible for delay in agreeing the final account.

Permission was granted on the two quantum issues but refused on the factual comment. Egger renewed its application to appeal that comment, arguing that it should not have been made and might influence the costs decision.

1. Application refused. The renewed application concerned only a factual finding that Egger had been responsible for the late agreement of the final account. The finding had no effect on the quantum assessment and was not reflected in any order made by the High Court.
2. The Court of Appeal’s jurisdiction is to hear and determine appeals from a judgment or order of the High Court. It does not extend to a challenge against a mere finding of fact or reason which has no consequence in the operative judgment or order. Lake v Lake [1955] P 336 supported that conclusion. The same principle applies whether the party seeking to challenge the finding succeeded or failed below.
3. By way of additional observation, the court held that a finding which had no consequence in the original judgment or order was not binding on the first-instance judge when it might later affect costs. The judge remained free to re-examine the finding when determining the appropriate costs order.
4. The possibility that the finding might influence costs did not create an appealable issue. Order: application for permission to appeal refused.

• Court of Appeal (Civil Division): Tuckey LJ granted permission on two quantum issues but refused permission on the factual finding. Lord Justice Waller refused the renewed application concerning that finding.
• High Court, Technology & Construction Court: His Honour Judge David Wilcox gave judgments on liability and quantum. He refused permission to appeal the two quantum issues and the factual finding concerning responsibility for late agreement of the final account.