Russell Jones v Dawn Hagger

An appeal is a review of the decision below, not a retrial or an opportunity to introduce evidence or reargue matters that were, or could have been, raised at trial. Where the trial judge has relied on an agreed single joint expert after considering the parties’ challenges, the appellate court will not interfere merely because a party disputes the expert’s methodology or conclusions. The court may correct a material error within the permission granted, but need not vary an order where the identified error is minor and operates in the appellant’s favour.

The claimant appealed against an order of Her Honour Judge Walden-Smith dated 28 November 2022, which awarded him £10,668.91 plus interest following the taking of an account between former partners in a pawn shop and lending business. Permission to appeal was granted only on whether the judge had correctly assessed the business’s total net loss and the claimant’s resulting share.

The claimant also challenged a subsequent order awarding him 50 per cent of his costs. The central issues were whether the permitted accounting calculations contained an error and whether the appellate court could reconsider the expert evidence or other matters outside the limited permission granted.

1. The substantive appeal was dismissed. The appellate court’s jurisdiction was confined to the two issues identified in Pepperall J’s order granting permission. Arguments concerning the methodology, accuracy or reliability of Professor Barnes’s reports, and further evidence obtained after trial, fell outside that permission and could not be considered.
2. An appeal is a review rather than a retrial or a rerun of points taken, or capable of being taken, at the original hearing. The parties had had the opportunity to question the single joint expert and make submissions on his reports before the trial judge. The judge was entitled to treat his evidence as the best available evidence in circumstances where the business records were seriously deficient (paras [10]-[17]).
3. No error of principle or arithmetic was established in the expert’s reports or in the judge’s additional findings. The asserted alteration of the agreed 65/35 partnership split was outside the permission granted, contradicted the position recorded as undisputed at trial, and would in any event have reduced the claimant’s recovery because the award represented a share of loss (para [13]).
4. The judge appeared to have used the figure in the expert’s first report rather than the lower figure in his revised report. That would have reduced the award to £9,368.91. Since the error was minor and operated in the claimant’s favour, the court declined to interfere with the order (para [16]).
5. The related costs appeals were also dismissed. The judge had been entitled to award the claimant 50 per cent of his standard-basis costs in light of the outcome and the substantial rejection of his case (paras [18]-[19]).

• High Court (King’s Bench Division): Appeal against the order of Her Honour Judge Walden-Smith dated 28 November 2022 dismissed. Related appeals concerning the costs order dated 23 October 2023 also dismissed.
• Cambridge County Court: Judgment entered for the claimant following the taking of an account, in the sum of £10,668.91 plus interest.