Andrew de Mestre QC and James Knott represent successful party in complex six-day appeal

December 9, 2020

The Court of Appeal (David Richards, Henderson and Rose LJ) has handed down its judgment on the majority of issues in conjoined appeals arising out of long running breach of fiduciary duty proceedings between Global Energy Horizons Corp (GEHC) and Mr Robert Gray. Having successfully represented GEHC at a trial before Asplin J in 2015 (led by Orlando Fraser QC), Andrew de Mestre QC and James Knott represented GEHC at the hearing of Mr Gray’s appeal from Asplin J and parts of GEHC’s appeal from a related order made by Arnold LJ.

The appeal hearing took place remotely over six full days and involved the consideration of detailed attacks by Mr Gray on Asplin J’s findings of fact, allegations by Mr Gray of breaches of duty by GEHC’s former solicitors, and applications by Mr Gray to rely on substantial amounts of fresh evidence and to amend his grounds of appeal.

In a lengthy judgment that will be of interest to practitioners contemplating appeals of detailed findings of fact the Court of Appeal rejected the vast majority of Mr Gray’s challenges to Asplin J’s findings of fact, rejected the allegations of breach of duty by GEHC’s former solicitors, and dismissed Mr Gray’s applications to admit fresh evidence. In doing so the Court:

  • held that Mr Gray’s attempt to argue points on appeal that he had previously sought to pursue by an application to set-aside the order under appeal, which he subsequently withdrew, amounted to an abuse of process, even though there had been no order formally dismissing the set aside application;
  • warned against the dangers of “island hopping” or “nit picking” when challenging individual and isolated submissions or findings of fact, without considering them against the evidence, submissions and findings as a whole;
  • gave detailed consideration to the application of limbs one and two of the Ladd v. Marshall test for the admission of new evidence (holding on the facts that Mr Gray failed both tests);
  • provided a stark but useful warning to practitioners on 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.” In what must be a relatively unusual case, the Court was moved to observe that the most substantial of Mr Gray’s grounds of appeal ought not even to have been granted permission by the Court below;
  • in particular, the Court noted the desirability of a respondent being given a proper opportunity to be heard on an application for permission to appeal which involves challenges to detailed findings of fact, concluding: “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.”

You can view the full judgment here.