Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd

Permission to appeal is governed by the single threshold in CPR r.52.6(1), including for decisions of the Technology and Construction Court. An appellate court will not revisit factual findings or evaluations of expert evidence merely because another conclusion was available. Intervention requires an identifiable error, such as a critical finding unsupported by evidence, a demonstrable misunderstanding or omission of relevant evidence, or a conclusion that cannot reasonably be justified.

Specialist and technically complex proceedings do not attract a different legal test. Their detailed and interlocking factual and expert evidence will, however, make the statutory threshold harder to satisfy in practice. Policy terms must also be read in their factual setting and given their ordinary commercial meaning.

Following a fire at a waste-processing plant, the insured sought a declaration that its insurer was liable to indemnify it under a policy of insurance. The insurer relied on alleged breaches of conditions precedent concerning the storage of combustible material, machinery maintenance, maintenance records, cleaning and housekeeping, and co-insurance.

Jonathan Acton Davis QC, sitting as a Deputy High Court Judge in the Technology and Construction Court, rejected each defence and entered judgment for the insured: [2018] EWHC 834 (TCC). The insurer applied for permission to appeal on eight grounds, principally challenging factual findings and the evaluation of expert evidence.

The central issues were whether a distinct approach governed permission appeals from the Technology and Construction Court and whether any proposed ground had a real prospect of success.

Disposition

The Court of Appeal refused the insurer’s application for permission to appeal.

1. CPR r.52.6(1) supplies the sole permission test throughout the High Court, including the Technology and Construction Court. There is no separate or more restrictive legal rule for Technology and Construction Court appeals.

2. Challenges to factual findings, factual evaluations and inferences face a high hurdle. Applying Fage UK Limited v Chobani Limited [2014] EWCA Civ 5, Henderson v Foxworth Investments Limited [2014] UKSC 41 and Grizzly Business Ltd v Stena Drilling Ltd [2017] EWCA Civ 94, intervention requires an identifiable error, or a conclusion that no reasonable judge could have reached. An appellate court should not re-argue the evidential case or isolate selected points from an interlocking trial assessment.

3. The same caution applies to expert evidence. Although written reports may sometimes facilitate review, an appellate court should not displace a composite first-instance evaluation by selecting individual points from the evidence. The specialist, technical and interlocking character of Technology and Construction Court disputes makes the statutory permission threshold particularly difficult to satisfy in practice. The guidance in Skanska Construction UK Limited v Egger (Barony) Limited [2002] EWCA Civ 1914 and Yorkshire Water Services Limited v Taylor Woodrow Construction Northern Limited [2005] EWCA Civ 894 remained binding and applicable.

4. The proposed grounds did not meet that threshold. The trial judge’s construction of the requirement concerning combustible material was correct: storage denotes a deliberate decision to keep material in a designated place for a period, not material temporarily or incidentally present as part of the process. His findings on combustibility, segregation, maintenance, records and housekeeping were open to him on the evidence.

5. The insurer could not advance, at the permission stage, an unpleaded allegation that the insured had failed to provide confirmation of compliance with a subjectivity. That point was too late and could not revive the co-insurance ground.

1. Court of Appeal (Civil Division). The insurer’s application for permission to appeal was refused.
2. High Court, Technology and Construction Court. Jonathan Acton Davis QC, sitting as a Deputy High Court Judge, rejected the insurer’s policy defences and gave judgment for the insured: [2018] EWHC 834 (TCC).