ATTEMPTING TO APPEAL A FINDING OF FACT? SET THIS OUT EXPLICITLY IN THE NOTICE OF APPEAL: CLEAR GUIDANCE FROM THE COURT OF APPEAL

In Taylor v Rhino Overseas Inc. [2020] EWCA Civ 353 the Court of Appeal set out guidance for a party attempting to appeal a finding of fact.  The fact that such an appeal is being made must be set out explicitly in the notice of appeal.

“In future, parties filing appellants’ notices should clearly identify any challenges to the lower court’s findings of fact in their grounds of appeal and squarely address those challenges in their skeleton arguments, so as to ensure that (i) the judge considering the application for permission to appeal appreciates that such a challenge is being mounted and can decide whether or not to grant permission for it and (ii) if permission is granted, the members of the Court hearing the appeal can prepare accordingly.”

THE CASE

The Court of Appeal dismissed an appeal against a judgment where all of his claims were dismissed.

THE JUDGMENT ON APPEALING FINDINGS OF FACT

Lord Justice Arnold dismissed the appellant’s first grounds of appeal, but did make observations on an attempt to appeal a finding of fact. The trial judge found that the claimant had made an “election”,  attempting to set aside that finding involved arguing that this was a wrong finding of fact.

 

    1. Given the conclusions that I have reached on Mr Taylor’s first ground of appeal, the second ground of appeal does not arise for decision. It is therefore not necessary for me to express any view on the interesting question of the true basis for the rule in Kendall v Hamilton. Nor is it desirable that I should do so given that anything I said would be obiter. This is all the more so for two reasons.
    2. First, it became clear during the course of argument that the question is tied up with the nature of the liability of an agent and an undisclosed principal to the counterparty who contracted with the agent: is it alternative (as counsel for Rhino argued) or is it joint and several (as counsel for Mr Taylor argued)? This is an aspect of the matter on which I would have preferred to have heard more detailed submissions than time permitted.
    3. Secondly, the doctrinal basis for the rule would only matter if Mr Taylor were able successfully to challenge the Judge’s conclusion that he elected to rely on the default judgment by his actions in Monaco. A similar issue arose to that considered above as to whether it was open to Mr Taylor to challenge that conclusion. Mr Taylor’s ground of appeal was that the Judge “wrongly misapplied, and erroneously misidentified the rationale and justification for the principle in Kendall v Hamilton“. Again, however, I consider that paragraphs 44-51 of Mr Taylor’s skeleton argument made it clear that he was challenging the judge’s conclusion on election, and Rose LJ must be taken to have given him permission to do so.
    4. There is a further aspect to the issue this time, however. As counsel for Rhino pointed out, election is a question of fact: Evans v Bartlam [1937] AC 473 at 485 (Lord Wright). Mr Taylor’s grounds of appeal did not mention any challenge to a finding of fact by the Judge. Nor did his skeleton argument in support of the application for permission to appeal make it very clear that he was challenging a finding of fact by the Judge, although this is apparent with the benefit of hindsight. It is therefore not at all certain that Rose LJ appreciated that that was the case.
    5. Practice Direction 52C paragraph 5 provides:
“(1) The grounds of appeal must identify as concisely as possible the respects in which the judgment of the court below is –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity,

as required by rule 52.21(3).

(2) The reasons why the decision under appeal is wrong or unjust must not be included in the grounds of appeal and must be confined to the skeleton argument.”
  1. It is common experience in this Court that grounds of appeal are not concise, as required by paragraph 5(1), but prolix. In the present case, Mr Taylor’s grounds of appeal were commendably succinct. Nevertheless, they should have made it clear that Mr Taylor was challenging a finding of fact by the Judge. It would have sufficed to say “the Judge was wrong to find as a fact that Mr Taylor elected to maintain the liability of the Original Defendants to the exclusion of the Additional Defendants because that finding was not open to the judge on the evidence”, leaving the supporting submissions to be developed in the skeleton argument.
  2. In future, parties filing appellants’ notices should clearly identify any challenges to the lower court’s findings of fact in their grounds of appeal and squarely address those challenges in their skeleton arguments, so as to ensure that (i) the judge considering the application for permission to appeal appreciates that such a challenge is being mounted and can decide whether or not to grant permission for it and (ii) if permission is granted, the members of the Court hearing the appeal can prepare accordingly.
  3. Given that it was a finding of fact, Mr Taylor faced obvious difficulties in challenging the Judge’s conclusion that he had elected to rely on the default judgment. No doubt recognising that he faced an upward struggle, on 18 February 2020 (the day before the hearing of the appeal) Mr Taylor applied, purportedly pursuant to CPR rules 52.20(1) and 3.1(2)(m) but properly rule 52.21(2)(b), to adduce further evidence consisting of a witness statement of Olivier Marquet, a Monegasque lawyer who has been acting for Mr Taylor in the Monaco proceedings. Rhino opposed the application on the grounds that (i) it was egregiously late, (ii) the evidence did not satisfy either of the first two criteria in Ladd v Marshall, (iii) a substantial part of the evidence was expert evidence which Mr Taylor had neither sought nor obtained the permission of the court to adduce and which did not satisfy the requirements of Part 35 (e.g. because it did not contain the appropriate expert declarations), and (iv) admission of the evidence would necessitate a remission of the issue to the lower court.
  4. These factors explain why I do not consider that it would be desirable to prolong this judgment by considering the second ground of appeal. It is sufficient to say that the application to adduce further evidence must in any event be dismissed having regard to the failure of Mr Taylor’s first ground of appeal.

THE SHORT JUDGMENT OF UNDERHILL LJ

The point is made clear in the judgment of Underhill LJ.

I agree that this appeal should be dismissed for the reasons given by Arnold LJ.  I wish to echo what he says at paras. 61-63.  It is rather surprising for this Court to be complaining that grounds of appeal are too succinct: usually, as Arnold LJ says, the problem is that they are far too discursive.  But grounds do need to identify (though they should not develop) the specific errors which the Judge is said to have made, and that includes any errors of fact on which the appellant seeks to rely.  The careful analysis which this may require should be as useful to the pleader as it will be to the Court.”