Official referees — Appeal against findings of fact — Uncertainty as to principles on which leave granted — Court of Appeal giving guidance — Applications for leave granted
Judge Lloyd QC, sitting on official referees’ business, determined a dispute relating to the sale and leaseback of premises at 15-18 Rathbone Place, London W1. Applications were made for leave to appeal against his decision by the first and second defendants and a cross-application by the plaintiffs. Such applications were not usually heard by the full court, but as there appeared to be some uncertainty as to the principles on which leave should be granted to appeal against official referee’s findings of fact, the applications were heard by the full court in order to give guidance.
Held Applications for leave to appeal were granted.
1. Official referees were originally appointed to conduct protracted and painstaking inquiries into complex and detailed factual issues. It was clearly felt that the factual minutiae with which official referees were required to deal were not suitable matters for consideration on appeal. It was better that their decisions on such matters should stand rather as if they were arbitrators. However, if personal or professional reputations were at stake it was a different matter.
2. The official referees were called upon to resolve complex and difficult issues of law; and to decide factual issues, sometimes closely bound up in the legal issues and usually involving not a morass of minute detail, but the resolution of factual questions not dissimilar from those resolved by judges sitting in other divisions of the High Court.
3. The test for the grant of leave to appeal to the Court of Appeal where personal and professional reputations were at a stake should be whether the ground of appeal which it was sought to argue had a reasonable prospect of success. If it had leave should be granted; if not, leave should be refused.
4. A prospective appellant would have difficulty in showing that the test was satisfied if he sought to challenge: (1) an official referee’s findings based on primary fact based on his evaluation of oral evidence; (2) the fine detail of an official referee’s factual investigation; (3) findings of fact falling within an official referee’s area of specialised expertise, particularly if the official referee had had the advantage of inspecting the site or subject-matter of the dispute in question.
5. It was not suggested that those were no-go areas, only that the burden of a prospective appellant would be hard to discharge. By contrast, the test would be more easily discharged where the appellant sought to challenge a secondary inference drawn from the facts, although even then proportionate weight had to be given to the specialised expertise of the official referee.
6. Leave to appeal on questions of fact should not be granted simply because an appeal on legal grounds was proceeding anyway.
7. Applications for leave should not be granted unless it appeared that the challenge, if successful, would be likely to affect the official referee’s overall decision.
8. Finally, care should be taken to prevent leave applications blossoming into dress rehearsals for the full appeal. At the leave stage the applicants’ only task was to show that a ground had a reasonable prospect of success and the court’s only task was to decide whether or not that appeared to be so.
David Hunt QC and Stephen Nathan QC (instructed by Denton Hall) appeared for the plaintiffs; Sarah Vaughan Jones (instructed by Kennedys) appeared for the first defendant, De Morgan; Michael Kallipetis QC and James Thom (instructed by Reynolds Porter Chamberlain) appeared for the second defendant, Finers.
