ANTHONY CARLELLO NORRIS & Ors v PETER DOOLEY

The renewed application for permission to appeal was refused. The underlying dispute was a petition under section 994 of the Companies Act 2006 concerning unfair prejudice and, following an eight-day trial, the trial judge ordered the respondent to buy out the petitioner for a sum in excess of £1 million (around £1.2 million). The proposed appellant challenged principally the trial judge's approach to valuation and his handling of expert evidence.

The court held that no error of law was shown. The trial judge had to resolve divergent expert opinions and made a careful evaluative assessment within the broad discretion accorded to a fact-finding judge. Challenges to specific aspects of the valuation methodology (including add‑backs and the multiplier) did not disclose a realistic prospect of success on appeal. The timetable for payment was judged to be reasonable, subject to the judge's express provision allowing application for an extension. The order for costs, including an interim payment on account of £200,000, was also held to lie within the judge's wide discretion despite the absence of a transcript explaining the costs decision.

Background and parties. This was a renewed oral application for permission to appeal an order made by ICC Judge Jones on 31 March 2021 following an eight‑day trial of a section 994 Companies Act 2006 petition for unfair prejudice. The intended appellants were Mr Norris and two companies; the petitioner (proposed respondent in the permission application) was Mr Dooley. Fancourt J had earlier considered the matter on the papers on 8 August 2021 and refused permission to appeal.

Relief sought. The applicants sought permission to appeal the trial judge's order which required Mr Norris to buy out Mr Dooley's shares for a sum some way north of £1 million (about £1.2 million) and which included a costs order with an interim payment on account of £200,000.

Issues framed by the court. The renewed application advanced multiple grounds, the principal ones being:

• whether the trial judge adopted the correct approach to valuation evidence and erred in respect of expert evidence;
• whether particular valuation adjustments (add‑backs and multiplier) were wrongly applied;
• whether the timetable for payment of the buy‑out sum was unreasonably short;
• whether the costs order, and the interim payment on account, was excessive or outside the judge's discretion, particularly given the absence of a transcript of the costs hearing;
• whether some parties should not have been joined, with consequences for costs.

Court's reasoning and decision. The court (Mr Justice Marcus Smith) declined to grant permission to appeal. He accepted that the trial judge's decision involved detailed factual evaluation after hearing significant witness and expert evidence and that the experts had not sufficiently narrowed issues between them, which made the task harder. Nonetheless, no legal error was identified. The judge was entitled to resolve the divergence between experts and to adopt a valuation methodology he considered supported by the evidence. The timetable for payment was not unreasonable and expressly allowed the respondent to apply to extend time if hardship could be shown. On costs, although there was no available transcript of the judge's oral reasons, the reviewing judge applied the test whether the judge had moved outside his broad discretion; he concluded the costs order (including the interim payment on account of approximately 50% of the anticipated figure) was within permissible bounds and that detailed assessment would address any disproportionate items, including possibly inappropriate joinders. For these reasons the renewed application for permission to appeal was refused and the order of Fancourt J refusing permission on the papers was effectively affirmed.

Permission to appeal was refused. The court concluded there was no error of law in the trial judge's valuation or costs exercise; the trial judge had made a careful evaluative assessment in circumstances where expert opinions diverged and his orders (including the payment timetable and the interim costs payment) lay within his broad discretion.

The trial judge was ICC Judge Jones, whose reserved judgment and consequential order were dated 31 March 2021 following an eight‑day trial. Fancourt J considered the application for permission to appeal on the papers on 8 August 2021 and refused permission. The renewed oral application for permission to appeal was heard by Mr Justice Marcus Smith on 2 December 2021, who refused permission and affirmed the approach taken by Fancourt J.