The importance of persuasive expert evidence and the difficulties of seeking appeal

Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [29.10.2018]

In May this year we reported on the case of Wheeldon Brothers Waste Limited v Millennium Insurance Company Limited [19.04.2018] which found in favour of the insured. Millennium Insurance Company (Millennium) sought permission to appeal this decision primarily based on the trial judge’s evaluation of expert evidence.

Background

Millennium sought permission to appeal based on eight grounds, the majority of which concerned the judge’s findings of fact and his assessment of the expert evidence. In particular, they challenged findings which dismissed the applicability of certain policy provisions that might otherwise have entitled them to refuse to indemnify Wheeldon Brothers Waste Ltd, under their insurance policy.

Decision

With reference to recent cases (including Fage UK Limited & Another v Chobani Limited & Another [2014], Henderson v Foxworth Investments [2014] and Grizzly Business Ltd v Stena Drilling [2017]), Coulson LJ concluded that to be overturned on appeal, a finding of fact must be one that no reasonable judge could have reached.

Coulson LJ refused permission on all eight grounds of appeal, finding that there was no realistic prospect of the Court of Appeal (the Court) coming to a different conclusion to that of the trial judge and that the Court, would be reluctant to unpick the judgment of the TCC, as it is likely to involve one or more of the following:

  • Detailed findings of fact in an area of specialist expertise
  • Lengthy and interlocking assessments of both factual and expert evidence
  • Factual minutiae which is difficult or impossible sensibly to reconsider on appeal.

The inevitable result, said Coulson LJ, is that obtaining permission to appeal on such matters in a TCC case may be harder than in other, non-specialist types of case. In practice, the overturning of a finding of fact by a trial judge, will usually only occur where there was no evidence at all to support the finding that was made, or the judge plainly misunderstood the evidence in order to arrive at the disputed finding. Coulson LJ added that, since evaluation of expert evidence is likely to be bound up with a wider evaluation of matters of fact, an appellate court will still be very slow to intervene.

Comment

This case reaffirms - particularly to those involved in TCC cases, including construction professionals, insurers, and legal advisers - that it is essential to have all your ducks in a row at the first trial. This will include:

  • Obtaining all the relevant documentary evidence available in support of their arguments. It is not sufficient for one party to criticise the other’s interpretation of documents or the adequacy of documents, without providing evidence in support of an alternative interpretation.
  • Appointing a persuasive expert. A trial judge is entitled to prefer one expert’s evidence over another. Ensure that the appointed expert has conducted any and all relevant tests/investigations themselves, as opposed to relying on the other side’s tests and seeking to challenge them.
  • Raising arguments in support of their case at the earliest possible stage in proceedings (namely, the pleadings) rather than seeking to raise new, previously un-pleaded, arguments at trial or in support of a permission to appeal application.

This case is also a warning to insurers to ensure that policy conditions are sufficiently clear and any requirements of an insured, are adequately prescribed to avoid complications when assessing the insured’s compliance.

Unless a finding of fact is one that no reasonable judge could have reached, parties cannot expect an appeal court to expend its resources re-hearing a case in order to get a second bite of the cherry. As Lewison LJ in Fage said, “The trial is not a dress rehearsal. It is the first and last night of the show”.

Related item: Construction of condition precedents in a property insurance contract