Spie Ltd v Garside

Permission to appeal against factual findings and evaluative conclusions will ordinarily be refused where the proposed grounds merely reargue the evidence. An appellate court must respect the trial judge’s advantage in assessing the whole evidence and courtroom atmosphere. A first-instance judgment need give sufficient reasons for the decision, but need not address every argument. New points ordinarily cannot be advanced if they were not pleaded. Permission requires a real prospect of success or another compelling reason. Costs decisions attract especially strong appellate restraint. A fiduciary cannot rely on purported consent where material changes are not clearly signposted and the consent is therefore not fully informed.

SPIE Ltd sought to recover £50,000, or an appropriate proportion, from Paul Garside following a compromise with an employee concerning enhanced bonus arrangements. The claim alleged breach of contract and fiduciary duty. HHJ Hand found that Garside had failed to disclose the altered bonus provisions adequately, that the breach caused loss, and apportioned two thirds of the compromise sum to the bonus claim and one third to unfair dismissal. He awarded SPIE its costs on the standard basis.

Garside renewed applications for permission to appeal against the liability and costs judgments. The issues included fiduciary conflict, informed consent, causation, apportionment, pleading, and the exercise of the costs discretion.

1. Permission and appellate restraint. Permission was refused on the grounds which sought to reargue factual findings or advance unpleaded cases. Appellate courts should not interfere with findings of primary fact, evaluations or inferences unless compelled to do so. The trial judge had considered the evidence as a whole, whereas an appellate court would be limited to reviewing documents and isolated points. The principles in Fage UK Ltd & anor v Chobani UK Ltd & anor [2014] EWCA Civ 5 were applied.
2. The judgment under challenge contained sufficient reasoning. A trial judge must identify the crucial legal points and give reasons sufficient to show the principles applied, but need not deal with every submission. New arguments ordinarily cannot be raised on appeal where they should have been pleaded. Permission requires a real prospect of success or another compelling reason.
3. Fiduciary duty and consent. The finding that Garside owed a fiduciary duty and was in a position of potential conflict was adequately reasoned. His personal financial interest in the costs of changing employees’ terms was capable of conflicting with his duty to SPIE. The unpleaded contention that conflict arose only when SPIE decided whether to enter a contract could not be relied upon.
4. The trial judge was entitled to find that sending the relevant agreement and side letter without clear comment or signposting did not constitute adequate disclosure. On those findings, the contention that SPIE gave fully informed consent was unsustainable. Permission was nevertheless granted on the informed-consent issue to the extent already permitted, and on the related point concerning whether the altered bonus wording was sufficiently signposted.
5. Causation and apportionment. The causation ground impermissibly challenged factual findings that SPIE would have acted differently had the enhanced bonus been disclosed. The broad-brush apportionment of the compromise sum was open to the trial judge on the evidence and disclosed no error of law.
6. Costs. The costs order fell within the generous ambit of discretion afforded to the trial judge. An appellate court should interfere only where that ambit has been exceeded. Permission to appeal the costs decision was refused.

• High Court (Queen's Bench Division): Tipples J refused permission to appeal on 18 May 2020. On renewal, Calver J refused permission on the principal grounds but granted it on the limited informed-consent and signposting issue identified in the judgment.
• County Court: HHJ Hand QC’s liability judgment and costs order dated 31 January 2020 found breach of fiduciary duty, apportioned the compromise sum, and awarded SPIE its costs on the standard basis.