Hyde & Anor (Liquidators of One Blackfriars Ltd) v Nygate & Anor

Permission to appeal may be granted only where the proposed appeal has a real prospect of success or there is some other compelling reason for it to be heard. Where the proposed grounds challenge findings of fact or evaluations of expert evidence, the applicant must show that no reasonable judge could have reached the impugned conclusion or evaluation. An appeal court should not dissect isolated evidential points from a composite first-instance assessment based on interlocking evidence. A misdescription of submissions will not justify permission where the judgment applied the correct legal test and the alleged error could not have affected the result.

The joint liquidators of One Blackfriars Ltd applied for permission to appeal from the dismissal of their claim against the former administrators. The proposed grounds challenged findings concerning the administrators’ statutory objective, valuation evidence, planning gain, conflicts involving CBRE, delegation, and light-touch administration. They also alleged errors concerning the standard of review and the treatment of a previous High Court decision.

The application was made to the judge who had delivered the underlying judgment dated 23 March 2021. The central question was whether any ground had a real prospect of success under CPR 52.6(1)(a).

Application refused. Permission to appeal was declined on every ground.

1. The governing test was CPR 52.6: permission could be given only if the appeal had a real prospect of success or there was some other compelling reason for it to be heard. Only the first limb was relied upon.

2. Applying Wheeldon Brothers Waste Ltd v Millennium Insurance Co Ltd [2018] EWHC Civ 2403, a finding of fact could be overturned only where no reasonable judge could have reached it. The same caution applied to evaluations based on expert evidence. The court was required to assess the proposed grounds against the underlying composite findings, rather than permit a re-argument of selected evidential points.

3. The grounds concerning the statutory objective, valuation, planning gain, CBRE’s role, delegation and light-touch administration substantially challenged findings of fact or evaluations of rival expert evidence. The judgment had addressed those matters, and the applicants had not shown that the conclusions were ones no reasonable judge could have reached.

4. The judge rejected the contention that he had applied an irrationality test or an impermissibly deferential approach. He had applied the ordinary breach-of-duty standard and had considered the competing formulations advanced by the parties. His conclusion that the former administrators had not breached duty by proceeding without a further valuation rested on factual findings and expert evidence.

5. Although the underlying judgment inaccurately described submissions concerning the status of a previous High Court decision, the judge had in substance considered and rejected each reason advanced for departing from Davey v Money. He was positively satisfied that the decision was correct and had applied the correct test. The additional reference to the decision not being plainly wrong was superfluous and did not create a real prospect of success.

6. The application was therefore refused in its entirety.

The judgment concerns an application to the High Court for permission to appeal from the judge’s own judgment dated 23 March 2021, which had dismissed the liquidators’ claim. Permission was refused on all grounds.