Partner - London. United Kingdom
Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [29.10.18]
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.
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.
With reference to recent cases (including Fage UK Limited & Another v Chobani Limited & Another , Henderson v Foxworth Investments  and Grizzly Business Ltd v Stena Drilling ), 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:
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.
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:
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”.