CHALLENGING FINDINGS OF FACT NOT APPEALING TO THE COURT OF APPEAL: PROPOSED RESPONDENT MAY BE ABLE TO HAVE A SAY IN AN APPLICATION FOR PERMISSION TO APPEAL BASED ON FINDINGS OF FACT
In Gray v Global Energy Horizons Corporation  EWCA Civ 1668 the Court of Appeal expressed severe reservations about permission to appeal findings of fact having been granted. The judgment indicates that, where findings of fact are challenged, the responding party should be able to play a much more active role in responding to an application for permission to appeal than when the appeal is on the point of law.
“While on many matters, including generally issues of law, there may be little that the successful party can say in opposition to an application for permission to appeal, we do not share the view that the same applies where detailed findings of fact in a complex case are challenged, and that goes as much for applications to this court as to the court below.”
After hearing an appeal over six days the Court of Appeal rejected an appeal that was, primarily, an appeal against findings of fact made by Asplin J. Permission to appeal had been given, after a later related hearing, by Arnold J.
THE JUDGMENT ON PERMISSION TO APPEAL
490. This appeal vividly illustrates the need for caution when considering applications for permission to appeal findings of fact made by the trial judge, particularly in a case involving extensive written and oral evidence from many witnesses and a mass of documentary evidence.
491. Once permission to appeal is given, the appeal court is duty-bound to examine in detail the submissions of the parties, and the evidence on which they rely for challenging and upholding the judge’s findings. As Mance LJ said in Todd v Adam (trading as Trelawney Fishing Co)  EWCA Civ 509,  Lloyd’s Rep 293 at  (cited in Datec Electronic Holdings Ltd v United Parcels Services Ltd  UKHL 23,  1 WLR 1235): “Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so…”.
492. In deciding whether the finding is wrong, the appeal court will apply the principles and approach explained in the decisions of the Supreme Court and of this court over the last 10 years or so. We have earlier cited a passage from the judgment of Lord Reed in Henderson v Foxworth Investments Ltd. Just as those principles guide the appeal court in determining the appeal, so they must guide the first instance court or the appeal court in deciding whether to give permission to appeal findings of fact. In framing draft grounds of appeal, and in advancing submissions in favour of the grant of permission, the putative appellant must anchor their case to those principles and explain which of them is engaged, and why, as regards each challenge. To be fair to Mr Gray’s legal team, that is precisely what they did when applying to Arnold J for permission to appeal against Asplin J’s order.
493. This is vitally important, because an appeal against findings of fact in any case, but particularly in a factually complex case such as the present, will absorb a significant amount of the time and resources not only of the parties and their advisers but of the court. As we earlier mentioned, the hearing of the present appeal took six full days and the preparation of this judgment has absorbed a great deal of judicial time. After all that, we have firmly concluded that there was no real substance to the challenges made by Mr Gray to the findings of Asplin J under Grounds 6 and 9. The only exception arises from the inconsistency between the findings of Asplin J and Arnold J as to the ROW business and Opco, which gave rise to essentially legal issues as to the appropriate remedy. At least some of the Grounds other than 6 and 9 raised arguable points, and indeed Mr Gray has succeeded on a couple of them, but they principally raised issues of law and could have been completed in a hearing of two days at most. With the exception of the inconsistency just mentioned, we consider that this is one of those cases where permission to appeal should not have been given as regards Grounds 6 and 9.
494. It is very unfortunate that in this case the application for permission to appeal against Asplin J’s order was heard, not by the trial judge shortly after she had delivered judgment, but by a different judge over four years after judgment had been given. Arnold J was, of course, familiar with the case having dealt with the valuation issue, but there was no need for him to be familiar with the detail of the evidence that had been before Asplin J, save as regards viability and valuation.