Skanska Construction Ltd v Egger (Barony) Ltd

LORD JUSTICE WALLER: His Honour Judge Wilcox has delivered two substantial judgments in large scale and complex litigation concerning a construction contract. The first related to liability and held, at least in certain material respects, that Egger, the defendants, were responsible for delay in making interim payments. In the second judgment he was concerned with quantum flowing from the breaches for which he had held Egger responsible. Egger sought permission to appeal from the judge, challenging findings in relation to the quantum judgment as to two figures. They sought permission to appeal a further finding of fact which related to the judge stating at one stage in the quantum judgment that Egger had been responsible for the late agreement of the final account. It is accepted that that comment by the judge about the lateness in agreeing the final account did not affect any actual assessment as to quantum, nor did it actually affect any order that the judge made following his judgment.

The judge refused permission to appeal any of the three points. Tuckey LJ granted permission to appeal on paper the two aspects of the quantum judgment which challenged the quantification or order which the judge made on the two figures, but he refused permission to appeal the finding by the judge as to the lateness in agreeing the final account.

Mr Richard Davies QC has renewed the application for permission to appeal that last finding. He submits that the finding should never have been made. He submits that his clients have a serious sense of grievance that that comment was made in the judgment, and his concern, as registered in his skeleton argument and as indicated today, was that the judge would feel himself bound by the comment when considering the appropriate orders on costs.

It seems, the argument in relation to costs having taken place over the last two days, that Skanska have not, through their counsel, sought to stop Mr Davies re-examining the question as to who was responsible for the late agreement of the final account, and it seems that the judge has not stopped re-exploration of that fact by virtue of the comment made in the judgment.

It seems to me that the first point on this renewed application is that Mr Davies faces an insuperable difficulty. He accepts, as I have already stressed, that this finding in relation to the lateness in agreeing the final account finds no concrete reflection in the order which the judge has made, so there is in fact no challenge to any part of the judgment or order of the judge based on the finding. The notes in the CPR at 52.0.13 refer to the fact that the jurisdiction of the Court of Appeal is to hear and determine appeals from any judge or order of the High Court, and the note continues: "Accordingly appeal lies against the order made by the lower court, not against the reasons which that court gave for its decision or the findings which it made along the way". It refers to an authority, Lake v Lake [1955] P 336. It is true that that case was concerned with whether a party who had succeeded in the court below could appeal certain of the findings of the judge, and it was held that the Court of Appeal had no jurisdiction to do so. But, in my view, there is no difference in principle. The position is that a mere finding of fact in a judgment which has no consequence in terms of an order is something which the Court of Appeal cannot entertain. The note also reflects the fact that if it is desired to bring a finding of fact to the Court of Appeal, it may be possible to persuade the judge to make a declaration of that finding of fact so as to have a form of order which can be brought to the Court of Appeal, but that certainly did not happen in this case. In my view, there simply is no jurisdiction to hear an appeal to reverse a finding of fact which a party wishes the judge had not made when it has no consequences in terms of the order or judgment actually made by the judge.

I would also add this. As it would seem to me, so far as any costs order is concerned, and any argument on costs, the procedure which has been adopted seems to me to be right in this sense. In my view, this type of finding is not binding in the sense of being a finding which the judge is unable to reconsider when the finding might have a consequence on the order that he is about to make. If Mr Davies is right that the only relevance of this finding relates to the costs question, and that is what he submits, then, in my view, the judge is free, and has been free, to re-examine that finding in relation to the order where that finding may have a consequence when that finding had no consequence in the original judgment or order.

For those reasons, this application for permission in relation to this third ground is refused.