Technology and construction court — Appellant alleging defective design and construction of sewage treatment plant — Court dismissing action against respondents for cost of remedial work — Appellant seeking permission to appeal against findings of fact — Application dismissed
The appellant engaged the first respondent to carry out improvements to its sewage treatment works. The first respondent then appointed the second and third respondents as subcontractors.
Upon completion, the appellant claimed that the plant, as designed and constructed, was defective. The respondents ceased to be operationally concerned with the plant in around November 2000 and the appellant engaged other parties to carry out remedial works. The appellant commenced proceedings against the respondents for, inter alia, the cost of the remedial works. The court dismissed the appellant’s claims and the appellant applied for leave to appeal.
The respondents submitted that the application could not succeed unless permission was granted to open all the highly complicated and technical facts which would outweigh such points of law as might be regarded as arguable, and that limited permission to appeal on points of law only would be insufficient.
Held: The application was dismissed.
The judge’s carefully considered findings of fact were not amenable to appeal.
Under CPR 52, permission to appeal would only be given where the court considered that the appeal would have a real prospect of success or where there was some other compelling reason to hear it. Generally speaking, the more complicated and technical the facts, the more difficult it would be for the applicant to succeed. The court’s inquiry would be longer and more expensive and the exercise would be disproportionate for the parties and the court alike. It could be that the facts might be so complicated and technical that they should only be judicially investigated once, provided that the resulting decision was not palpably incompetent.
The facts in the present case were close to that extreme and the judge’s factual decisions were of the highest quality. The technical complexity of this case was well beyond the practical judicial experience of most judges. The judge at first instance had had the advantage of hearing the complex technical evidence, opinion and argument and had come to a decision which he was entitled to reach, and which no appellate court would challenge.
David Sears QC and Kate Livesey (instructed by Berwin Leighton Paisner) appeared for the appellant; David Streatfeild-James QC and Fiona Parkin (instructed by Pinsent Masons, of Manchester) appeared for the first and second respondents; Timothy Eliott QC and Gideon Scott Holland (instructed by Immanuel & Co) appeared for the third respondent.
Eileen O’Grady, barrister
