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10-12-2020

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Lasting six days, Gray v Global Energy Horizons Corporation [2020] EWCA Civ 1668 was an unusually long and complex appeal which did not fare well before David Richards, Henderson and Rose LJJ. The judgment itself runs to 495 paragraphs. The underlying litigation lasted nine years and involved three trials in which, in essence, Global Energy claimed that Mr Gray, had, in breach of his fiduciary duties, received profits and benefits for which he was obliged to account to it. Following a trial on liability, Vos J held that Mr Gray owed fiduciary duties to the claimant and directed him to give an account. That led to a further hearing in the form of an inquiry before Asplin J which in turn gave rise to yet another hearing before Arnold J as to the valuation of certain assets held by Mr Gray.

There was no appeal against the judgment of Vos J, but Mr Gray mounted an appeal on nine grounds against the order of Asplin J and on seven against the order of Arnold J and sought to rely on new evidence.

The appeal was largely unsuccessful, as was Mr Gray’s attempt to rely on fresh evidence, primarily because Mr Gray was asking the Court of Appeal to revisit findings of fact made at first instance; and it is the approach of the court to that that is of interest.

The judgment ended with the court’s concluding observations which began with a warning:

“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.”

There followed an expression of surprise that permission to appeal had even been given in relation to the most substantial of Mr Gray’s most substantial ground of appeal. The court noted,

“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 valution.”

The Court of Appeal also drew attention to the desirability of hearing from the other side where a party is seeking permission to appeal, especially where the appeal is a challenge to findings of fact:

“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.”

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