Pan NOx Emissions Litigations, Re

Permission to appeal requires a real prospect of success. An appeal lies against the order, not an isolated fragment of reasoning. Where a decision rests on alternative bases, a proposed appeal must show a real prospect of changing the result by overcoming the basis that makes the difference.

An evaluative decision will be disturbed only where there is an identifiable flaw, such as a gap in logic, inconsistency or failure to consider a material factor, or where the finding is plainly wrong or outside the range of proper decisions.

The claimant sought permission to appeal from an earlier decision concerning further letters of request and the French blocking statute. The proposed grounds challenged findings concerning a real risk of prosecution and the balancing exercise.

The central question was whether the proposed grounds identified an appealable error capable of producing a different order.

1. Application refused. There was no real prospect of success.
2. An appeal is against the order, not an isolated fragment of reasoning. Where there are alternative bases, the applicant must show a real prospect of overcoming the basis that makes the difference.
3. Appellate intervention in an evaluative decision requires an identifiable flaw, such as a gap in logic, inconsistency or failure to consider a material factor, or a plainly wrong finding: Prescott v Potamianos, known as Re Sprintroom [2019] EWCA Civ 932; Clin v Walter Lilly [2021] EWCA Civ 136; Jalla v Shell [2021] EWCA Civ 1559.
4. The challenged findings involved a multi-layered evaluation of evidence, foreign law and practice, and comity. The grounds did not identify an error capable of affecting the result.
5. The procedural point under PD52A paragraph 4.6 did not require consideration because the application was well short of the threshold.

The ruling determined an application for permission to appeal from an earlier decision in the same proceedings. The citation of the earlier decision is not stated in the judgment.