NPOWER COMMERCIAL GAS LIMITED v SEP PROPERTIES LIMITED

Permission to appeal from a County Court first appeal should be granted only where the proposed ground has a real prospect of success or there is some other compelling reason for the appeal to be heard. A challenge to factual findings must overcome the high hurdle applicable to appellate interference with a first-instance judge’s assessment of the evidence. Contractual wording must be construed in its immediate context and in the context of the agreement as a whole, with each use of a term considered on its own merits. A contractual requirement to provide renewal terms was an administrative step and not a precondition to termination by written notice.

Npower Commercial Gas Limited appealed in the High Court against an order of Mr Recorder McGrane in the County Court at Swindon, which gave judgment for Npower in relation to unpaid electricity supplied under a contract concerning Meter 2 at commercial premises in Walsall.

Foxton J had granted permission on Ground 1 and refused permission on the remaining grounds. SEP renewed its applications concerning Grounds 2 to 6. Those grounds alleged disclosure failures, an erroneous finding that the contract continued after its fixed term, an incorrect construction of the contractual term “site”, factual error concerning the destination of the electricity, and an unsupported finding that the meter was operating correctly.

1. Permission test. Under CPR r 52.6, permission required a real prospect of success on the proposed appeal or some other compelling reason for the appeal to be heard. The court agreed with Foxton J’s reasons in relation to the renewed grounds.
2. Ground 2. The Recorder had considered the evidence with care and gave clear and persuasive reasons for finding that no change-of-tenant notice concerning Meter 2 had been received. Alleged disclosure failures did not establish a real prospect that the factual finding was plainly wrong or one which no reasonable judge could have reached.
3. Ground 3. The requirement in clause 4.2 to give 30 days’ written notice was not made conditional on Npower first sending renewal terms under clause 4.4. Clause 4.4 contemplated an administrative communication for customers considering renewal. It was not a precondition to effective termination where the customer wished to end the arrangement.
4. Ground 4. Contractual meaning depended on the use of the word “site” in its immediate context and in the agreement as a whole. The relevant question was the location to which electricity had to be supplied to fulfil the contract. In that context Meter 2, identified by its meter and MPAN, necessarily formed part of the contracted supply location. What happened to the electricity after supply to the meter was within SEP’s control, not Npower’s. No plausible alternative construction was advanced.
5. Grounds 5 and 6. The challenges to the findings that the electricity was not supplied exclusively to Flat 30 and that Meter 2 was operating correctly were disagreements with the Recorder’s assessment of the evidence. They did not approach the high threshold for appellate intervention.
6. Disposition. The renewed applications for permission to appeal on Grounds 2, 3, 4, 5 and 6 were refused. Permission on Ground 1 had already been granted.

1. High Court (Queen’s Bench Division): The renewed applications for permission to appeal on Grounds 2 to 6 were refused. Permission on Ground 1 had previously been granted by Foxton J.
2. County Court at Swindon: Mr Recorder McGrane made an order dated 7 January 2022, following his judgment concerning liability for electricity supplied under the Meter 2 contract.