Cherrilow Ltd v Butler- Creagh

A grant of permission to appeal should be set aside only for a compelling reason. The court must identify material inaccuracies in the material before the permission judge that were capable of materially misleading that judge. A set-aside hearing is not a rehearing of the permission application or a preliminary determination of the appeal’s merits. It must not become satellite litigation. The late receipt of the respondent’s submissions does not itself justify a fresh review of whether the appeal has a real prospect of success. Where alleged inaccuracies concern the evidential merits of the appeal, their significance is ordinarily for the substantive appeal. A typographical error that could not have affected the permission decision is insufficient.

The judgment concerned permission to appeal against an order of Eady J. The judge had found that Cherrilow’s claim in deceit against Mr Butler-Creagh succeeded and had entered judgment for more than £7 million.

Sir Richard Buxton had granted permission to appeal on two grounds. Cherrilow later sought to have permission on the second ground set aside, contending that the applicant’s skeleton argument contained material inaccuracies concerning disclosure, the evidential support for consequential loss, and the opportunity to test a revised schedule of loss. Lord Justice Richards considered whether the permission decision had been materially misled or should be reviewed more broadly because Cherrilow’s submissions had arrived late.

Lord Justice Richards declined to set aside permission to appeal on the second ground.

1. Threshold. Under CPR 52.9(2), the court will be very slow to set aside a grant of permission and will do so only where there is a compelling reason. In the circumstances, the proper basis would be material inaccuracies in the applicant’s submissions capable of misleading the court when permission was granted.
2. Scope of the hearing. The court should not reconsider whether the proposed appeal has a real prospect of success. A set-aside application must not become a dummy run of the substantive appeal or substantial satellite litigation. The fact that the respondent’s submissions were received only after permission had been granted did not justify a broader review.
3. Alleged inaccuracies. A typographical error in the applicant’s skeleton argument was immaterial. Read with the underlying material and Eady J’s judgment, the skeleton made it sufficiently clear that the applicant’s case was that the disclosed documents did not substantiate the losses claimed, rather than that no disclosure had been given.
4. Merits of the appeal. Whether the documents supported the claimed losses, whether the applicant had an opportunity to test the figures, whether that opportunity was deliberately forgone, and whether post-hearing written submissions were an adequate substitute were all matters for the substantive appeal. They were not suitable for summary determination on the set-aside application.
5. Disposition. There was no sufficient ground for taking the exceptional course of setting aside permission. Sir Richard Buxton’s order stood, so permission on ground 2 remained in force. The operative order was recorded as Application granted.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 1679, Lord Justice Richards declined to set aside permission to appeal on ground 2 and confirmed that Sir Richard Buxton’s permission order stood.
• High Court of Justice, Queen’s Bench Division: Eady J found Cherrilow’s deceit claim against Mr Butler-Creagh successful and entered judgment for more than £7 million.