Renpower Investments Ltd v Clark Willmott LLP & Anor

Fresh evidence must be relevant to an issue that was decided or is properly raised on appeal. Evidence showing that Ofgem had no record of the company as owner of an installation was irrelevant where the contractual condition required successful accreditation, not registration of the company as owner. A point apparent from documents available before the original decision is not fresh merely because its significance is later appreciated. Permission to appeal and an extension of time should be refused where the proposed appeal has no real prospect of success.

The applicant sought permission to appeal out of time from an order made by Master Fontaine on 29 June 2012. The order declared that a condition in a share purchase agreement had been satisfied and required payment of the purchase price. The applicant relied on correspondence with Ofgem obtained after completion, asserting that Ofgem had no record of the company as owner of the accredited solar installation.

The central issues were whether the correspondence constituted relevant fresh evidence, whether the agreement required the company to be named on Ofgem’s register, and whether any requirement that the company receive the accreditation confirmation had been waived.

1. Permission refused. The application was made out of time and relied on alleged fresh evidence. No criticism was made of Master Fontaine’s judgment, and the point now advanced had been conceded before her.
2. The later Ofgem correspondence did not constitute relevant fresh evidence. It concerned whether Ofgem recorded the company as owner of the installation. That was not a condition specified in the share purchase agreement. It did not affect whether the accreditation confirmation of 4 November 2011 had been received.
3. A point that could have been taken from documents available before the original decision cannot properly be treated as fresh evidence merely because subsequent correspondence gives it greater significance. The letter was addressed to the sister company, Lark Energy, and that fact was apparent at the time.
4. Even assuming that the agreement contemplated the company applying for and receiving confirmation of accreditation, receipt by Lark Energy could amount to receipt by the company only if Lark Energy acted as its agent. There was nevertheless no real prospect of establishing either that the company had to be named on Ofgem’s register or that the relevant contractual requirement had not been waived by proceeding to completion with knowledge of the letter’s addressee.
5. The application for an extension of time was therefore also refused. No order was required concerning repayment of the purchase price.

• High Court (Queen’s Bench Division): Application for permission to appeal out of time from Master Fontaine’s order dated 29 June 2012 refused. No extension of time was granted.