Yorkshire Water Services Ltd. v Taylor Woodrow Construction Northern Ltd & Ors

On an application for permission to appeal from a Technology and Construction Court decision, the ordinary real prospect of success test must be applied with close regard to the nature of the proposed factual challenge. Under Civil Procedure Rules 1998, an appeal is ordinarily a review, not a rehearing. Permission will rarely be appropriate where it would require an appellate court to reopen a trial judge’s detailed composite evaluation of extensive technical and expert evidence.

The greater the factual and technical complexity, the heavier the burden on the applicant. Legal grounds should also be refused where they cannot affect the result without a wholesale and unarguable challenge to the trial judge’s factual findings.

Yorkshire Water Services Ltd sought permission to appeal from Forbes J’s order in the Technology and Construction Court dismissing its claims arising from a design-and-performance contract for improvements to sewage-treatment works.

Yorkshire Water alleged that the sequencing batch reactor was defective and claimed the actual or prospective costs of remedial works under contractual provisions concerning performance tests and defects. The judge held that the plant was not defective and that Yorkshire Water had not proved that it would have failed the contractual performance tests.

The proposed appeal advanced contract-construction grounds and extensive challenges to technical findings concerning treatment capacity, sludge settleability, influent quality and plant operation. The central issue was whether any ground had a real prospect of success without reopening the judge’s detailed factual evaluation.

1. The application for permission to appeal was dismissed. The proposed appeal was not viable unless Yorkshire Water obtained permission to reopen large areas of highly technical factual findings. It had no real prospect of doing so.

2. Under Rules 52.3 and 52.11 of the Civil Procedure Rules 1998, permission requires a real prospect of success or another compelling reason, and an appeal is ordinarily a review rather than a rehearing. The boundary between review and rehearing is a spectrum. However, Yorkshire Water did not seek, and could not realistically obtain, a rehearing in the fullest sense.

3. The established appellate principles apply with particular force to Technology and Construction Court decisions. A trial judge in such a case is especially well placed to assess complex technical evidence, expert opinion and interlocking factual evaluations. The more complicated and technical the subject matter, the more difficult it will generally be to establish a basis for appellate interference. Permission should not become a dress rehearsal for a full appeal.

4. Forbes J’s findings were the product of a lengthy trial and a detailed, persuasive analysis. They were neither glaringly wrong nor remotely incompetent. The proposed grounds largely sought to reargue evidence and challenge interlocked inferences that could not sensibly be detached from the judge’s overall factual evaluation.

5. The contract-construction grounds could not produce a recovery unless the central factual findings were displaced. That included the findings that the plant was not defective and would have passed the relevant performance tests if properly operated. The alleged errors of law were therefore overwhelmed by the facts found at trial.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 894, dismissed Yorkshire Water’s application for permission to appeal.
• Technology and Construction Court: Forbes J, on 8 July 2004, dismissed Yorkshire Water’s claims in their entirety. No citation for that decision is stated in the judgment.