Housing estate — Refurbishments — Architects engaged by local council — Architects unsuccessfully suing for fees — Official referee finding breach of contract — Architects seeking leave to appeal on findings of fact — Whether leave to be granted on “arguable” case — Whether liberal approach required for professional persons — Whether conclusions would have been the same irrespective of possible error in findings of fact — Leave to appeal refused
This application for leave to appeal on questions of fact under Ord 58, r 4(b) arose out of a building contract dispute between the plaintiff architects and the local authority which had engaged the architects for a refurbishment programme on the Clements Avenue Housing Estate, London E16: see [1992]EGCS 139. The questions generally related to findings, which the architects submitted, were contrary to and/or had been unsupported by the evidence.
On the question of the proper test to be applied, in such an application, in Hoskisson v Moodie Homes (1989) 46 BLR 81, which was the first application for leave under Ord 58, r 4, it was stated that “the only principle upon which an official referee can decide whether to grant leave to appeal from himself is whether he thinks the appeal were to have any real prospects of success”. In McAlpine Humberoak Ltd v McDermott International Inc (1991) 58 BLR 61, it was stated that leave should be granted on an issue of fact” … [on] the view that the judge was plainly wrong or … it is arguable that he was plainly wrong”. A “lower test” was accepted in Lamacrest (Contractors) Ltd v J I Case Europe Ltd (1991) 58 BLR 37, where the matter was considered on the basis “that it is only necessary to show it is arguable that the findings were wrong”. In the instant case, counsel for the architects submitted that an official referee should be “tender” of the reputation of architects, so that the court should be liberal in its approach and be inclined to grant them leave. Ord 58, r4(b) provides: (b) with the leave of the official referee or the Court of Appeal, on any question of fact or, where section 18(1) (f) applies, as to costs only.
Held The application was refused.
1. By “arguable” in Lamacrest, the Court of Appeal must have meant arguable with reasonable prospects of success in persuading an appellate court that an official referee was wrong. It might be, therefore, that the approach in Hoskisson was broadly correct.
2. None of the three cases cited dealt directly with the question of whether leave to appeal should be given when, even if it were to be found that the official referee was wrong in a finding of fact or in failing to find a fact, his error would not have affected his overall decision — either because the fact was of no material consequence or because there were ample other facts to support it. It seemed that in those circumstances leave should not be granted.
3. The court realised the importance of reputation to a member of a learned profession and that a finding of breach of contract against him might result in loss of work and in higher insurance premiums. However, house builders, contractors, suppliers of special products and many others also had reputations to safeguard. Ord 58, r 4(b) — unlike the rule it replaced – did not distinguish between findings relevant to breach of professional duty and those which did not relate to breaches of professional duty. An official referee, therefore, could not properly give leave to appeal to an architect when he would refuse it to a builder.
4. On the questions of fact, the conclusions had been based on many findings of fact and on ample evidence. Further even if a finding had been wrong, it would not have affected the general conclusions on the merits of the case.
Richard Fernyhough QC and Adrian Williamson (instructed by Alastair Thomson & Partners) appeared for the plaintiff architects; Humphrey Lloyd QC and Andrew Burr (instructed by Fenwick Elliott & Burns) appeared for the defendant local authority.
