DEBORAH GIDDENS v BRIAN FROST & Ors

A proposed appeal must have a real prospect of success or another compelling reason for permission. An alleged evidential deficiency in a party’s own case does not ordinarily constitute a serious procedural irregularity. The court is not generally required to prompt a party to obtain expert evidence which the party has not identified as reasonably required, particularly where the party had notice of the relevant issue and an opportunity to seek evidence. An appeal against findings of fact must satisfy the established grounds for appellate intervention and cannot be used to obtain a re-trial. Where permission is refused but an application is to be renewed, the court may stay proceedings and enforcement of a costs order pending the Court of Appeal’s decision.

The judgment determined consequential matters following the court’s earlier preliminary-issue judgment, [2022] EWHC 1022 (Comm). The claimant had succeeded on a limitation issue concerning the alleged loss of pension-related emails and the defendants sought permission to appeal on grounds alleging procedural irregularity, inadequate evidential support and errors in findings about actual or constructive knowledge.

The court also considered the claimant’s costs of the preliminary issue, whether enforcement and the proceedings should be stayed pending any renewed application to the Court of Appeal, and the costs of the consequential matters.

1. Costs. The claimant was the successful party on the preliminary issue. Applying the factors in Civil Procedure Rules 1998, r 44.4, including reasonable incurrence and conduct, and taking account of the principle discussed in DVB Bank SE v Vega Marine Ltd [2020] EWHC 1704 (Comm), the court summarily assessed recoverable costs at £38,400 including VAT.
2. Permission to appeal. The defendants’ first two grounds concerned the absence of expert evidence about the plausibility of the claimant’s account that emails had been inadvertently deleted. The defendants bore the evidential burden of proving deliberate deletion, while the claimant bore the ultimate persuasive burden on the limitation issue. The claimant was entitled to rely on her own evidence in resisting the allegation.
3. The absence of expert evidence beyond the agreed forensic evidence directed to recoverability did not amount to a serious procedural or other irregularity. The defendants had been aware of the deletion issue, had an opportunity to seek appropriate expert evidence, and had not done so. A judge’s failure to prompt parties to adduce evidence they had not identified as reasonably required is not, in these circumstances, a procedural irregularity.
4. The proposed challenge to the findings concerning deletion and actual or constructive knowledge did not disclose any of the recognised grounds for appellate interference with findings of fact identified in Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600. The proposed appeal instead sought to revisit the evidence and obtain something akin to a re-trial.
5. Permission to appeal was refused under Civil Procedure Rules 1998, r 52.21. An appellant’s notice to the Court of Appeal was to be filed within 21 days. The proceedings and enforcement of the costs order were stayed pending the outcome of any timely renewed application or appeal.
6. The costs of the defendants’ permission application were payable by the claimant in any event; the remaining costs of the consequential judgment were costs in the case.

The judgment itself records the earlier preliminary-issue decision:

• High Court (Circuit Commercial Court) — the claimant succeeded on the preliminary limitation issue in [2022] EWHC 1022 (Comm).
• High Court (Circuit Commercial Court) — permission to appeal was refused in the present consequential judgment. The defendants were permitted to renew the application before the Court of Appeal by appellant’s notice filed within 21 days.