ANTHONY CARLELLO NORRIS & Ors v PETER DOOLEY

Permission to appeal will be refused where proposed grounds merely challenge a trial judge’s evaluative conclusions on valuation evidence and the judge adopted a methodology open to him on the evidence. An appellate court will not interfere with a valuation reached within the trial judge’s evaluative discretion merely because the experts’ evidence was unsatisfactory or the result is unattractive to a party. Questions of costs likewise attract a broad discretion. The absence of a transcript explaining a costs order does not itself establish an arguable error. The court may consider the available factual context, including success at trial, the usual principle that costs follow the event, and the provision for detailed assessment.

The intended appellants sought permission to appeal an order made by ICC Judge Jones on 31 March 2021 following an eight-day unfair-prejudice petition under section 994 of the Companies Act 2006. The order required Anthony Norris to buy Peter Dooley’s shares for approximately £1.2 million and to pay costs, including £200,000 on account. The proposed appeal principally challenged the valuation methodology, the treatment of add-backs and the multiplier, the time allowed for payment, and the costs order.

Fancourt J had refused permission on the papers. The renewed application raised whether the proposed grounds had a real prospect of success, including whether the trial judge had exceeded his evaluative discretion on valuation and costs.

1. Permission refused. The renewed application was dismissed and the order of Fancourt J refusing permission was affirmed.
2. The proposed first ground did not identify an error of law. The trial judge had carefully evaluated the factual and expert evidence, explained his reasoning, and reached a valuation within the broad evaluative discretion available when determining factual matters such as company value. Criticism of the experts’ failure to narrow the issues did not amount to criticism of the judge or his judgment.
3. Grounds two and three failed for the same reason. The judge was entitled to choose a valuation methodology in light of the divergence between the experts, and to determine the resulting questions concerning add-backs and the multiplier by reference to the evidence.
4. Grounds four and five were not pursued. They would in any event have failed. A payment period of 28 days was not excessive, and the order permitting an application to extend the date for payment provided an appropriate safeguard where hardship could be demonstrated. A stringent timetable for complying with court orders is generally appropriate after resolution of a dispute.
5. In relation to costs, the absence of a recoverable transcript of the judge’s reasons did not justify permission. The proper approach was to consider whether, on the facts available, it could arguably be said that the judge had exceeded his broad discretion. The petitioner had succeeded overall and had beaten the valuation advanced by the respondent’s expert, so the judge was entitled to order costs effectively following the event.
6. Any costs attributable to parties said not to have been properly joined could be addressed on detailed assessment. The interim payment of £200,000 was below the usual percentage payment on account and reasonably reflected the possibility that excess costs would be disallowed.

• High Court (Chancery Division): On 2 December 2021, the renewed oral application for permission to appeal the order of ICC Judge Jones dated 31 March 2021 was refused. The court affirmed Fancourt J’s earlier refusal of permission.
• Business and Property Courts (Insolvency and Companies List): ICC Judge Jones made the order dated 31 March 2021 following an unfair-prejudice petition, requiring a buy-out and making costs orders.