Gray v Boreh

A non-party witness cannot bring a free-standing appeal merely to challenge adverse factual findings which affect reputation but do not form an operative determination, order or judgment. An appeal may be available where the process allegedly infringed the witness’s Convention rights, but that route protects procedural fairness rather than the correctness of the findings.

Permission remains discretionary. The court must consider the proposed appeal’s prospects and balance the witness’s interests against the parties’ rights to finality and determination within a reasonable time. A suitable disciplinary tribunal may provide the appropriate forum for challenging findings relevant to professional misconduct.

A solicitor sought permission to appeal findings that he had deliberately and dishonestly misled the Commercial Court when presenting evidence supporting a freezing order. The findings were made when Flaux J allowed the defendant’s application to set aside that order: [2015] EWHC 769 (Comm). The solicitor had given evidence and had separate representation, but no relief was ordered against him. He was subsequently joined only for the purpose of seeking permission to appeal.

The proposed procedural grounds alleged that the findings resulted from an unfair process engaging article 8 of the European Convention on Human Rights. Further grounds challenged the substance of the judge’s factual reasoning. The issues were whether the Court of Appeal had jurisdiction to hear either category of challenge and, if so, whether permission should be granted.

1. Permission to appeal refused. Gloster LJ, with whom Briggs LJ agreed, assumed that the court had jurisdiction to entertain the procedural grounds because they alleged an unfair process engaging article 8 of the European Convention on Human Rights. If procedural unfairness were established, an available remedy could hypothetically include rehearing the set-aside application, even though this might effectively reopen the factual findings.

2. No free-standing substantive appeal lay against the findings of dishonesty. The applicant had no financial, proprietary, legal or equitable interest in whether the freezing order remained in force. His interest was solely reputational, and joinder for the limited purpose of seeking permission could not itself confer appellate status. Findings which do not amount to a determination, order or judgment are not normally appealable unless the case ultimately turns upon them or they are made the subject of a declaration. Article 8 protects fair process; it does not guarantee a correct factual conclusion or confer a general right upon a witness to appeal criticism of evidence or professional conduct.

3. The procedural grounds had no real prospect of success. The allegations of dishonesty had been clearly formulated before the hearing. The applicant responded with extensive evidence, obtained separate representation and had a full opportunity to address the relevant material. He was not entitled to advance notice of every line of cross-examination or every way in which the evidence might be argued. No adjournment was sought, and the judge’s detailed assessment disclosed no procedural unfairness.

4. Permission would also have been refused as a matter of discretion. The actual parties had not appealed the setting aside of the freezing order, the main proceedings had concluded, and reopening the findings could expose them to delay, costs and one-sided satellite litigation. Their rights under article 6.1 to finality and determination within a reasonable time outweighed the applicant’s asserted article 8 interest.

5. The Solicitors Disciplinary Tribunal was the appropriate forum for defending the applicant’s professional reputation. Under rule 15(4) of the Solicitors (Disciplinary Proceedings) Rules 2007, the civil findings were admissible but not conclusive. He could therefore adduce evidence, challenge the findings and contend that the earlier process had been unfair.

1. Court of Appeal (Civil Division): By [2017] EWCA Civ 56, the court assumed jurisdiction over the proposed procedural appeal but refused permission. It held that no free-standing substantive appeal lay against the non-operative factual findings.

2. High Court, Queen’s Bench Division (Commercial Court): In [2015] EWHC 769 (Comm), Flaux J found that the applicant had deliberately and dishonestly misled the court and set aside the freezing order. No operative relief or declaration was made against the applicant personally. Flaux J subsequently refused him permission to appeal.