Grizzy Business Ltd v Stena Drilling

A renewed application for permission to appeal may succeed where there is a realistic prospect that the Full Court will find that critical trial findings lacked evidential support, failed to address relevant considerations or were flawed. This applies in an unusual, fact-sensitive case involving a brief conversation where the challenge concerns the evidential and contextual reasoning. A realistic prospect of error in a substantial costs order can independently justify permission. A conditional stay may be granted pending appeal, subject to security for costs.

Grizzy Business Ltd sought renewed permission to appeal from an order of Teare J in the Commercial Court. The underlying dispute concerned whether an oral telephone agreement entitled Grizzy to a success fee if Stena chartered its drilling vessel to Shell. Teare J found for Grizzy against the second defendant, awarding over $2.2 million and interest. He also ordered the first defendant to pay 90% of Grizzy's costs, despite its success in resisting the claim that it was contractually liable.

Permission had been refused on paper by Lewison LJ. The renewed application raised whether the factual findings had adequate evidential support and properly addressed the surrounding circumstances and contemporaneous documents, and whether the costs order was erroneous. The Court of Appeal also considered whether the judgment should be stayed pending any appeal.

Lord Justice Christopher Clarke granted permission to appeal on both the principal merits issue and the costs issue.

1. Challenge to the factual findings. The underlying dispute turned largely on what was said during a brief telephone conversation. Teare J had assessed the witnesses, the negotiating context, the absence of an immediate confirmatory email, evidence from earlier success-fee transactions and later references to the alleged agreement. He concluded that Mr Devine's account was more likely than not to be true.
2. Although the case had the features of one in which a trial judge's findings might ordinarily be difficult to challenge, the applicant argued that the conclusion was not truly credibility-based. It submitted that the critical findings lacked sufficient evidential support and that relevant considerations had been omitted or given insufficient weight. On the unusual facts, Clarke LJ considered that there was a realistic prospect of persuading the Full Court that the judge had erred. The evidence had the character of a mosaic, and the material examined was sufficient to justify permission.
3. Costs. There was also a realistic prospect of persuading the Full Court that the order requiring the first defendant to pay 90% of Grizzy's costs was erroneous. The first defendant had succeeded in resisting the claim that it owed the principal sum, had shown that it should not have been made a party, and was not shown to have controlled the second defendant or been the real party to the litigation.
4. Interim order. The judgment against the second defendant was stayed pending the hearing of the appeal or further order, conditional on the appellant providing security for costs of £75,000 within 14 days.

• Court of Appeal (Civil Division): On a renewed application, Lord Justice Christopher Clarke granted permission to appeal on the principal merits issue and the costs issue, and granted a conditional stay.
• High Court of Justice, Queen's Bench Division, Commercial Court: Teare J gave judgment against the second defendant for over $2.2 million and interest, and ordered the first defendant to pay 90% of the claimant's costs.
• Permission stage: Lewison LJ had refused permission on paper before the renewed application.