MYLES HANTLER v CLAIRE HIBBERT

An appeal is not a rehearing of the trial. Permission should not be granted merely to revisit factual findings or the trial judge’s evaluation of complex evidence, particularly where an alleged arithmetical error formed only one strand of the reasoning.

A claim for compound interest requires more than a bare claim for interest. It requires a pleaded case identifying the loss said to justify compounding, together with evidence and an articulated basis for the particular rate adopted.

The second defendant renewed an application for permission to appeal after permission had previously been refused on paper. The renewed hearing was permitted because the written submissions supporting the application had not been before the court.

Two grounds remained live. Ground 2 challenged the trial judge’s computation of loss and sought to reopen his assessment of conflicting expert evidence. Ground 4 challenged an order for compound interest at 5 per cent per annum, made by reference to the jurisdiction to award simple interest under section 35A of the Senior Courts Act 1981.

1. Ground 2. Permission was refused. The alleged arithmetical error at paragraph 53 of the judgment below did not justify an appeal. That paragraph represented one material strand of a long and complex assessment, rather than the foundation of the judge’s conclusion. Allowing the ground would require the appellate court to revisit the trial process, including the judge’s evaluation of factual matters and expert evidence. Appeals are not rehearings, and the ground had no real prospect of success.
2. Ground 4. Permission was granted. The trial judge appeared to have treated the jurisdiction to award compound interest as essentially equivalent to the jurisdiction to award simple interest under section 35A of the Senior Courts Act 1981. There was a reasonable prospect that this approach involved legal error.
3. Where compound interest is claimed, the claimant must plead the loss said to justify compounding and provide an articulated reason, supported by evidence, for the particular compounded rate. A bare averment of interest does not ordinarily provide a sufficient basis for such an award. The court expressed no view on whether the rate and period ultimately ordered were substantively appropriate on the facts.

Permission to appeal was therefore refused on ground 2 and granted on ground 4.

1. High Court (Chancery Division). Permission to appeal was initially refused on paper on all four grounds, with the application certified as totally without merit. Following the discovery that material written submissions had not been considered, a renewed application was heard orally. Permission was refused on ground 2 and granted on ground 4.