Younger v Lansdowne Tutors Ltd

For permission to appeal, a trial judge’s separate determination of an issue may constitute an alternative ratio decidendi, even where another finding was formally determinative. A realistic prospect of success on one issue does not justify reopening a separate issue decided adversely to the applicant. The court may refuse permission where the appeal cannot succeed without re-litigating that independent finding, particularly where the proposed new evidence is available only because another issue is being reopened. The permission jurisdiction also protects litigants from the unacceptable costs risk of a doomed appeal or a fresh trial.

The claimant sought to renew an application for permission to appeal from Simon J’s decision in the Commercial Court, reported at [2006] EWHC 1647 (QB).

The first-instance judgment rejected the claimant’s case that a Finder’s Fee Agreement had been executed. The judge also held, separately, that even if the agreement had been made, the claimant had proved no recoverable loss. A further finding favoured the claimant: there would have been no legal justification for refusing payment if the agreement had been entered into.

On renewal, the claimant relied on newly obtained witness statements concerning execution and new expert evidence concerning loss. The central issue was whether a realistic prospect on execution justified reopening the independent damages finding and proceeding to a full appeal.

1. Permission refused. The fresh witness evidence gave the claimant a realistic prospect of success on the execution of the Finder’s Fee Agreement. The court could not try that issue at the permission stage, but accepted that the first-instance conclusion might have been different had the evidence been available.
2. The judge’s finding that there was no recoverable loss was not strictly obiter. Although the litigation was formally determined by the finding that the agreement had not been executed, the loss finding was an alternative ratio decidendi: [2006] EWHC 1647 (QB) had independently resolved that issue on the evidence before the trial judge.
3. There was no realistic prospect that a full appeal would reopen the loss issue. Reopening the execution issue would not, consistently with legal principle, undo the separate finding on loss. Nor should the claimant use evidence admissible only because the execution issue had been unravelled to re-litigate the distinct question of loss.
4. The court’s permission function includes preventing appeals with no realistic prospect of success and protecting prospective appellants from unacceptable costs risks. Here, success on execution could lead only either to dismissal of the appeal or to a new trial in which the existing costs would be at stake again. That risk made continuation of the appeal unjustifiable.
5. The application for permission to appeal was refused. The court nevertheless indicated that the new evidence removed any necessary adverse implication concerning the claimant’s honesty or reliability.

1. Court of Appeal (Civil Division): On renewal, Lord Justice Sedley refused permission to appeal.
2. High Court of Justice, Queen’s Bench Division, Commercial Court: Simon J held that the Finder’s Fee Agreement had not been finally executed, that no recoverable loss had been proved even if it had been executed, and that there was no legal reason for withholding payment on that assumption. The decision is reported at [2006] EWHC 1647 (QB).