In Ward v Rai [2026] EWCA Civ 816 ('Ward'), the Court of Appeal (Falk LJ, Jeremy Baker LJ; Foxton LJ) heard a second appeal against a CPR case management decision.
Essential facts
In essence, during the course of a detailed assessment hearing, at the end of day 2 (6.8.24), the first instance judge, Deputy Costs Judge Friston (the 'Costs Judge'), gave an ex tempore judgmemt, making certain case management decisions ('CMDs'), contrary to what was argued by the claimant Mr Ward. The CMDs were to:
(1) '...refuse to strike out a point of dispute which challenged the work on documents section of the claimant's bill of costs' (Ward, paragraph 1); and
(2) '...allow the defendant to rely on a late-filed schedule setting out details of the challenges to that section.' (Ward, paragraph 1);
The detailed assessment hearing then went into a Day 3 (8.11.24).
The disappointed claimant appealed. On the first appeal, Hill J (the 'Judge') allowed the appeal; the defendant Mr Rai then appealed the Judge's decision, to the Court of Appeal.
The above are the essential facts in Ward. However a fuller description of the facts is provided in a footnote[1].
In addition, a description was given the detailed assessment process, which readers may find interesting (also in a footnote[2]).
Exposition of the law surrounding appealing against a case management decision
Under the heading 'Discussion', Falk LJ (with whom Jeremy Baker LJ; Foxton LJ agreed) in Ward said, at paragraphs 34 and 35:
'It is well-established that appellate courts should not interfere with such decisions simply because they disagree with them or otherwise consider that they would have taken a different course. Rather, as Lewison LJ reiterated in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 at [51]:
"Case management decisions are discretionary decisions. They often involve an attempt to find the least worst solution where parties have diametrically opposed interests. The discretion involved is entrusted to the first instance judge. An appellate court does not exercise the discretion for itself. It can interfere with the exercise of the discretion by a first instance judge where he has misdirected himself in law, has failed to take relevant factors into account, has taken into account irrelevant factors or has come to a decision that is plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree. So the question is not whether we would have made the same decisions as the judge. The question is whether the judge's decision was wrong in the sense that I have explained."
Thus, as Lord Neuberger indicated when approving this passage in Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64, [2014] 1 WLR 4495 at [13], the essential question is whether the decision could properly have been made. I would add by way of emphasis that the question is not whether the appellate court considers - however strongly - that it would have made a different decision.'
Then Falk LJ in Ward turned to the case before her, and said, at paragraph 36:
'The Judge carefully directed herself as to these principles at [62]-[65] of her judgment, and reminded herself of them again at [132]. However, I have reluctantly concluded that her decision nonetheless strayed beyond the limits set by them, such that the appeal must be allowed. ... the Costs Judge's decision disclosed no error of principle or failure to take relevant matters into account, and did not otherwise fall outside the ambit of his discretion. It should therefore not have been set aside.'
Falk LJ in Ward then said, at paragraphs 37 to 43:
'Some preliminary observations are appropriate.
First, one of the reasons why appellate courts must exercise caution when reviewing case management decisions is that it is impossible to recreate the situation before the judge. There is an analogy with an appeal on facts, where an appellate court will be island-hopping whereas the judge will have reviewed the sea of evidence (FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29 at [114]). On an appeal against a case management decision an appellate court is simply not in the same position as the judge. It will not have the same perspective of the circumstances as they appeared to the judge "on the ground" at the time, it risks being influenced by hindsight, and (as the submissions in this case have also illustrated) it also risks being influenced by arguments that were simply not made or at least were not developed before the judge, and which have benefited from a lengthy period of gestation.
The second, related, point is that case management decisions are frequently made under significant pressure. This case provides an excellent example. The Costs Judge had little option but to make an immediate decision at the end of the second day, with an unreserved judgment, because he had to decide whether to complete the assessment on that day or to adjourn.
This leads to the third point. It should not be forgotten that an ex tempore judgment is just that, unreserved and lacking in the preparation that would go into a reserved judgment. It should be read as a whole, with those points - and the circumstances in which it was delivered - in mind, rather than picked apart in minute detail. An uncontroversial example of this is that both parties proceeded in this court on the basis that striking out Point 23 and permitting reliance on the annotated schedule really stood or fell together, despite them being considered sequentially by the Costs Judge. In the pressured circumstances he was under, the quality of the Costs Judge's judgment is to be commended.
The fourth point is this. The points that have arisen in this case have included an alleged lack of reasoning on the part of the Costs Judge, as well as some confusion caused by what appears to have been a mis-recollection on his part at the adjourned hearing as to precisely what his reasoning had been at the earlier hearing. [Counsel for Mr Rai] reminded us of what Munby LJ said in In re A (Children) [2011] EWCA Civ 1205, [2012] 1 WLR 595 at [16]:
"… it is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process."
In this case [Mr Ward's] failure to do so is all the more marked by the fact that, by the date of the adjourned hearing on 8 November, his legal team had obtained a transcript of the judgment under appeal, but had neither shared it with [Mr Rai] nor provided a final version to the Costs Judge. Further, no permission to appeal against the decision on 6 August was sought at any stage from the Costs Judge, which might also have provided an opportunity for clarification, and (relying on CPR 47.14(7)) no appeal was filed in the High Court until after the November hearing.
This brings me to my final preliminary point, costs and court resources. It does no credit to the justice system for there to be appeals on case management issues which do not, on analysis, raise material points of principle and the cost implications of which must risk outweighing the sums at stake. This reinforces the importance of parties seeking clarification, and where appropriate, reconsideration by the first instance judge. An appeal should be a last resort....'[3]
On the facts in Ward, as stated by Falk LJ in paragraph 36 (above), the appeal was allowed. Falk LJ,
(a) at paragraph 45 formulated the question as: 'whether he was entitled to make the decision that he did.'? Falk LJ then went through Mr Ward's arguments, in support of the Judge's approach/criticising the Costs Judge's approach;
(b) at paragraph 58 said 'While it would clearly have been open to the Costs Judge to strike out Point 23 and not permit reliance on the annotated schedule, and another judge might have taken that course, he was not obliged to do so. It was open to him to impose a costs sanction instead, as he made clear that he would.' (on day 3, the Costs Judge did impose a costs sanction on Mr Rai it seems, seemingly for his procedural errors)
(c) at paragraph 60, emphasised that this was '...on the basis that this was a decision that the Costs Judge was entitled to make within the generous ambit of his discretion.' Falk LJ added that 'It was neither the only decision he could make, nor was it one with which other judges would necessarily agree.' (paragraph 60) but that, in essence, did not matter - the decision the Costs Judge had reached, was one within the generous ambit of his discretion, and so should stand.
When an appeal court might interfere with a first instance judge's decision
Separately, for some useful cases on when an appeal court might interfere with a first instance judge's decision, see
(1) Bridging Finance Inc v Lyons [2026] EWHC 1388 (Ch)[4];
(2) Ocorian Private Trustees (Jersey) Ltd v McGeoch [2026] EWHC 1575 (Ch)[5];
(3) EJW Builders Ltd v Marshall [2026] EWCA Civ 911[6]
3 opportunities (typically) to obtain permission to appeal
A further (separate) point. Where permission to appeal is required, typically, a would-be appellant has 3 opportunties to obtain that permission to appeal:
(1) lower court - from the judge who made the decision, which is sought to be appealed;
(2) appeal court - from an appeal judge(s), on paper;
(3) appeal court - from an appeal judge(s), at an oral hearing (CPR r.52.4(2) and r.52.4(3)).
See Evans v Swansea Building Society [2026] EWCA Civ 978 for when an appeal court may decide, at (2): (i) not only to refuse permission to appeal on paper, but also (ii) to remove the ability of the would-be appellant to seek permission to appeal at an oral hearing (i.e. (3)).
Collatory Case Series
The Collatory Case Series, is an series of bulletins, designed to report that one case (perhaps, with a few extra authorities), which collates the essential principles/propositions of law, for a particular doctrine/area of law. It is not designed as a deep and comprehensive review of an area of law, but to provide that quick 'go to' case.
SIMON HILL © 2026*
BARRISTER
33 BEDFORD ROW
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole, or the Copyright holder. No attempt has been made to provide an exhaustive review/account of the law in this area. *Copyright is owned by Barrister Search Limited.
[1] In Ward v Rai [2026] EWCA Civ 816 ('Ward'), Mr Ward (Claimant) issued proceedings against Mr Rai (Defendant) in relation to an road traffic accident. The case was settled (by acceptance of a Part 36 Offer), with the result that Mr Rai was to pay Mr Ward's costs of the claim, subject to a detailed assessment if not agreed. Mr Ward duly commenced detail assessment proceedings (paragraph 6).
Mr Ward put in bill of costs, with Item 39 seeking c.134 hours for work on documents (paragraph 6).
Mr Rai put in a Points of Dispute, point 23 ('Point 23') of which took issue with item 39. Point 23:
(1) stated '[Mr Rai] will rely on an annotated documents schedule of objections in support of [sic] however the following general points are made' (paragraph 7);
(2) made 8 general points, and offered, as appropriate, c.68 hours work on documents (paragraph 7);
Mr Ward put in a reply to Mr Rai's Points of Dispute, contending Point 23 ought to be dismissed, contending (amongst other things) that Mr Rai had made only general points, and so: '...in the absence of any specific areas of reductions identified at this juncture, the Claimant is unable to provide a meaningful response. The Claimant refers to the decision in Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178...' (paragraph 8) 'The claimant nonetheless responded to the general points raised, and indicated that he would be willing to accept a total of 130 hours...' (paragraph 8)
A 2 day detailed assessment hearing was listed for 5-6.8.24 (paragraph 9). Then, on 31.7.24,
'...the defendant filed and served the annotated documents schedule referred to in the points of dispute, which identified for the first time the individual items in dispute. Objections were divided into eight categories, which were not the same as the eight points listed in Point 23. The annotated schedule offered 58.5 hours'
At the hearing, Point 23 was not addressed until the latter part of day 2. Mr Ward invited the Costs Judge to (paragraph 11):
(1) strike out Point 23 as not being compliant with Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178, [2020] 1 WLR 2664 (Ainsworth'); and
(2) to refuse permission to rely on the annotated schedule.
In an ex tempore judgment, the Costs Judge:
(1) determined these case management decisions (the 'CMDs'), deciding to refuse to acceded to Mr Ward's arguments; and
(2) adjourned the detailed assessment to a day 3.
Day 3 of the detailed assessment hearing took place on 8.11.24.
Subsequently, Mr Ward appealed the Costs Judge's decision on the CMDs.
The first appeal came before Hill J (the 'Judge'), who was assisted by Costs Judge Leonard. The Judge allowed the appeal (paragraph 14), amongst other things: (1) striking out Mr Rai's Point 23; and (2) refusing Mr Rai permission to rely on the annotated documents schedule.
Mr Rai appealed (paragraph 5) to the Court of Appeal.
[2] In Ward v Rai [2026] EWCA Civ 816 ('Ward'), under the heading 'CPR rule 47, Practice Direction 47 (PD 47) and Ainsworth', Falk LJ referred to provisions governing the detailed assessment process - with particular focus on the paying party's Points of Dispute, and the requirement that (non-general; i.e. specific) points are made in the Points of Dispute. That specific points in the Points of Dispute challenging the bill of costs, be short and to the point (i.e. focused) - such as to enable the receiving party to know precisely what is in dispute and why, so that the receiving party may have a fair opportunity to reply to them. Falk LJ in Ward said, at paragraphs 15 to 20:
'Under CPR rule 47.6, detailed assessment proceedings are commenced by serving a notice of commencement and a copy of a bill of costs in the form specified in PD 47. Rule 47.9 permits the service of points of dispute in response within 21 days (subject to extension by agreement, see paragraph 8.1 of PD 47), failing which a default costs certificate may be obtained. Rule 47.13 allows the receiving party to serve a reply to the points in dispute within 21 days. The court becomes actively involved only when a detailed assessment hearing is sought pursuant to rule 47.14. The obvious aim is to allow the parties an opportunity to reach agreement without the need for the court's intervention.
Paragraph 8 of PD 47 deals with points of dispute. Paragraph 8.2 provides:
"Points of dispute must be short and to the point… They must:
(a) identify any general points or matters of principle which require decision before the individual items in the bill are addressed; and
(b) identify specific points, stating concisely the nature and grounds of dispute…"
Paragraph 13 of PD 47 addresses the detailed assessment hearing. Paragraph 13.10 provides:
"(1) If a party wishes to vary that party's bill of costs, points of dispute or a reply, an amended or supplementary document must be filed with the court and copies of it must be served on all other relevant parties.
(2) Permission is not required to vary a bill of costs, points of dispute or a reply but the court may disallow the variation or permit it only upon conditions, including conditions as to the payment of any costs caused or wasted by the variation."
It is also worth noting that CPR rule 47.14(6) provides that only points specified in the points of dispute may be raised at the hearing, unless the court gives permission.
[Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178] concerned a solicitor and own client assessment, but the court had regard to Part 47 in determining the form that points of dispute should take. Asplin LJ, with whom Lewison and Peter Jackson LJJ agreed, said this about paragraph 8.2 of PD 47:
"37. … [Paragraph 8.2] makes it absolutely clear that points of dispute should be short and to the point and, therefore, focused. Furthermore, sub-paragraphs (a) and (b) leave no doubt about the way in which the draftsman should proceed. General points and matters of principle which require consideration before individual items in the bill or bills are addressed, should be identified, and then specific points should be made 'stating concisely the nature and grounds of dispute'. Such an approach is entirely consistent with the recommendations and observations made in the Review of Civil Litigation Costs: Final Report (December 2009) to which we were referred.
38. Common sense dictates that the points of dispute must be drafted in a way which enables the parties and the court to determine precisely what is in dispute and why. That is the very purposes of such a document. It is necessary in order to enable the receiving party, the solicitor in this case, to be able to reply to the complaints. It is also necessary in order to enable the court to deal with the issues raised in a manner which is fair, just and proportionate."
At [44] Asplin LJ also referred to the court's wide discretion to dismiss one of the points of dispute under the strike-out power in CPR rule 3.4(2)(b) or (c) (abuse of process or failure to comply with rules etc).'
Later, in Ward, Falk LJ added, at paragraph 61:
'Paying parties should be under no illusion that paragraph 8.2 of PD 47 requires an Ainsworth compliant approach. They should not assume that a lenient approach will be taken if they take a similar approach to [Mr Rai] in this case. Those who do not comply on a timely basis risk non-compliant elements of their points of dispute being struck out or, as a minimum, cost sanctions. Similarly, late variations by either party under paragraph 13.10 of PD 47 risk being disallowed or permitted only on conditions, including as to costs.'
[3] In Ward v Rai [2026] EWCA Civ 816, Falk LJ added one final point, on the end of this quotation (so, at the end of paragraph 43) - specific to the facts in the case. Falk LJ said:
'This is quite apart from the fact that the very narrow gap between the final Part 36 offers should have given serious pause for thought before embarking on the hearing in the first place.'
See paragraph 13 about the Part 36 offers.
[4] In Bridging Finance Inc v Lyons [2026] EWHC 1388 (Ch), Rajah J, under the heading 'Principles' said, at paragraph 13 to 18:
'CPR 52.21(3) provides:
“The appeal court will allow an appeal where the decision of the lower court was-
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
The approach of an appeal court to an appeal on a question of fact is well settled. The following principles were identified from the authorities by Lewison LJ in Volpi v Volpi [2022] EWCA Civ 464 at [2]:
“i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however preeminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
In Henderson v Foxworth Investments Ltd (SC(Sc)) [2014] 1 WLR 2600 Lord Reed summarised the appellate court’s approach at [67]:
“It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot be reasonably explained or justified”.
The same caution applies to evaluative decisions where the judge has reached a conclusion based on an evaluation of primary facts or as to the inferences to be drawn from them; see Prescott v Potamianos (also known as Re Sprintroom) [2019] EWCA Civ 932. McCombe LJ, Leggatt LJ and Rose LJ said in a joint judgment at [76]:
“So, on a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided, ‘such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.’”
The reasons for appellate caution were summarised by Lewison LJ in his well-known judgment in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] E.T.M.R. 26 at [114], as follows:
“114. Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva Plc [1977] R.P.C. 1; Piglowska v Piglowski [1999] 1 W.L.R. 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23; [2007] 1 W.L.R. 1325; Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 W.L.R. 1911 and most recently and comprehensively McGraddie v McGraddie [2013] UKSC 58; [2013] 1 W.L.R. 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include
i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
ii) The trial is not a dress rehearsal. It is the first and last night of the show.
iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”
The same approach applies whether the trial judge heard oral evidence or determined the case on written evidence. Deference to the trial judge is not just because the trial judge has an advantage in the assessment of credibility of witnesses who gave oral evidence but involves other considerations; see McGraddie v McGraddie [2013] 1 WLR 2477 at [3].
Those other considerations include those identified by Lewison LJ in Fage which remain operative in a case where there has not been oral evidence (although perhaps courtroom atmosphere may be less significant). It is the first instance judge’s role to determine and evaluate the facts relevant to the issues to be decided, whether that determination is based on oral evidence or written evidence or contemporaneous documents or photographs or expert evidence or any other admissible evidence. Even if the material can be placed before the appeal court in the same form in which it was before the first-instance judge, the judge at first instance will have immersed him or herself in the sea of evidence presented to him or her, whereas an appellate court will usually only be island hopping. Even if, exceptionally, the appeal court can be placed in as good a position as the trial judge to make a finding of fact, an appeal is not a rehearing but a review. It is not the role of the appeal court to substitute its judgment, but rather to review the decision below and to interfere only if compelled to do so.'
[5] In Ocorian Private Trustees (Jersey) Ltd v McGeoch [2026] EWHC 1575 (Ch), HHJ Matthews sitting as a Judge of the High Court, under the heading 'The law' and subheading 'Appeals generally' said, at paragraphs 46 to 49:
'The lawyers involved in this case will know this, but for the benefit of the lay clients I set out here a few basic points about appeals in civil cases. The first point is that such an appeal is limited to a review of the decision of the court below, unless the court considers that in the circumstances of a particular appeal it would be in the interests of justice to rehear the case: see CPR rule 52.21(1), and Audergon v La Baguette Ltd [2002] EWCA Civ 10, [83]...
A second point is that rule 52.21(3) provides that the appeal court will allow the appeal where the decision was (a) wrong, or (b) unjust, because of serious procedural or other irregularity in the proceedings below. But the appeal court will overturn a judge’s findings of fact or evaluative judgment only if it is satisfied that the judge was plainly wrong: see FAGE UK Ltd v Chobani UK Ltd [2014] EWCA 5, [114], and Volpi v Volpi [2022] 4 WLR 48, [2].
Thirdly, the court below must give reasons for its decisions: Bassano v Battista [2007] EWCA Civ 370. But on an appeal such reasons are to be read on the assumption that the judge knew how to perform the judicial functions and the matters which had to be taken into account: Piglowska v Piglowski [1999] 1 WLR 1360, 1372. This is particularly the case when, as here, a judgment is given in effect ex tempore, on the next working day. Moreover, the judge at first instance has no duty, in giving reasons, to deal with every argument presented by counsel in support of his case: see eg Eagil Trust Co Ltd v Piggott-Brown [1985] 3 All ER 119, 122; English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, [19].
Fourthly, the appeal court does not easily allow a new point to be raised which was not raised below. In Singh v Dass [2019] EWCA Civ 360, Haddon-Cave LJ (with whom McCombe and Moylan LJJ agreed) said:
“16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.
17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial …
18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs …”'
The last point, the Judge's 5th point, is quite specific. It is set out here, for completeness (paragraph 50):
'Fifthly, the effect of an error by the court below in assessing abuse of process which vitiates its decision is to confer power on the appellate court to take the decision again. In Stuart v Goldberg Linde [2008] 1 WLR 823, Lloyd LJ said:
“43. … On a question of abuse of process of this kind raised at a preliminary stage such as this, with no oral evidence, it seems to me that the appellate court is often likely to be, and in the present case is, in as good a position as the court below to assess whether the proceedings are or are not an abuse of the process.”
And Sir Anthony Clarke MR said:
“86. In these circumstances, applying the principles identified by Thomas LJ in the Aldi Stores Ltd case [2008] 1 WLR 748, it is as I see it for us to consider afresh whether this action is an abuse of process … ”'
[6] In EJW Builders Ltd v Marshall [2026] EWCA Civ 911, the Court of Appeal (Warby LJ; Falk LJ; Miles LJ), the Court of Appeal heard an appeal, brought by the claimants, against a first instance judge's (the 'Judge') finding that there was no: (a) partnership; nor (b) contractual joint venture, between: (i) the claimants (building company and company director); and (ii) the defendants (hotel owners).
On the appeal, Falk LJ, with whom Warby LJ and Miles LJ agreed, said:
(1) at paragraph 2:
'There is no suggestion that the Judge made an error of legal principle. Rather, this is an appeal on the facts. As Nugee LJ indicated when granting permission to appeal, it therefore faces a formidable hurdle. In my judgment it has not surmounted that hurdle, and the appeal should be dismissed.'
(2) under the heading 'Discussion' and subheading 'The approach of this court', at paragraphs 27 to 34:
'27. As already indicated, this is an appeal against findings of fact. The Claimants rightly accept the very high hurdle for challenging findings of fact on appeal, namely that they will not be interfered with unless the court is satisfied that they are "plainly wrong": Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48 at [2]; see also FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29 ("FAGE v Chobani") at [114] and Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136, [2021] 1 WLR 2753 at [85].
28. In a little more detail, the principles have very recently been usefully summarised by Popplewell LJ in Kerish International Motors Agency v Opel Automobile GmbH [2026] EWCA Civ 865 (handed down since the hearing of this appeal), as follows:
"20 … In the absence of some identifiable error such as a material error of law, an appellate court will not interfere with such findings unless the judge's decision is plainly wrong, in the sense that it was one which no reasonable judge could have reached, or (which is the same) lies outside the bounds within which reasonable disagreement is possible; if the decision does not come within that category it is irrelevant that the appellate court would have reached a different decision…
21 Four of the reasons for that restrictive approach are of relevance to the current appeal. First, where the trial court has heard evidence given orally by witnesses, tested by cross-examination, it is in a much better position to evaluate that evidence than an appeal court which does not have that advantage; a transcript of the evidence does not capture the atmosphere of the courtroom or the subtleties of the way the evidence was given. Secondly, as Lord Hoffmann said in Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360, 1372: '[The judge's] expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.' Thirdly, the trial judge has sat through the entire case and their ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for days or weeks will be far deeper than that of the appellate court whose view of the case is much more limited: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477, at [4], as captured in Lewison LJ's memorable and oft-quoted metaphor of 'island-hopping'. Fourthly, duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. Again to quote the memorable language of Lewison LJ in FAGE v Chobani: '[t]he trial is not a dress rehearsal. It is the first and last night of the show'."
29. The crux of the Claimants' complaint is that the Judge did not properly address contemporaneous documentary evidence that they say supports their case. [Counsel for the Appellants'] relied on observations by Males LJ in Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, [2019] 4 WLR 112 at [46] to [49], in particular that:
"…fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it." ([46])
That if this (among other things) is not done:
"…the reasoning of the judgment will need to be particularly cogent if it is to satisfy the demands of justice. Otherwise there will be a risk that an appellate court will conclude that the judge has 'plainly failed to take the evidence into account'." ([47])
And in relation to contemporaneous documents, their significance "as a means of getting at the truth" ([48]), and Males LJ's observation at [49] that it was:
"…particularly important that, in a case where there are contemporary documents which appear on their face to provide cogent evidence contrary to the conclusion which the judge proposes to reach, he should explain why they are not to be taken at face value or are outweighed by other compelling considerations."
30. The guidance in Simetra at [49] should be considered in the light of the guidance in Volpi at [2(iii)], which reads:
"An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it."
31. In Sukhwinder Singh v Makhan Singh Bains & Anor [2026] EWCA Civ 408, Miles LJ said this at [118]:
"Hence, on the one hand, Volpi shows that an appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration and the mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. On the other, as Simetra illustrates, where the judge does not address and explain the reasons for rejecting apparently compelling evidence which is contrary to the conclusion which he proposes to reach, the appellate court may, but will not necessarily, conclude that the evidence has been overlooked.”
32. I agree. For the avoidance of doubt, the guidance in Volpi on this point remains entirely valid, and indeed is all the more obviously pertinent in a case such as this where the Judge delivered his judgment at the close of a short trial. Males LJ was providing guidance in Simetra about how judges should approach their judgments. If there is cogent documentary evidence contrary to a judge's conclusion which is not expressly addressed then there is an inevitable risk that this will be, as Lewison LJ put it, a "compelling reason" to depart from the assumption that the judge has considered it.
33. A separate point that is worth emphasising is encapsulated in the well-known statement by Lord Hoffmann in Biogen Inc v Medeva Plc [1997] R.P.C. 1, 45:
"The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance …, of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
This makes a similar point to Lord Hoffmann's observations in Piglowska v Piglowski, referred to by Popplewell LJ in the citation above.
34. A final point to make at this stage is this. [Counsel for the Appellants'] submission that contemporaneous documents should be given primacy by a judge is not one that I can straightforwardly accept. Of course, contemporaneous documentary evidence will very frequently be given significant weight, for well-rehearsed reasons which include the fallibility of memory and the point that evidence created before a dispute materialises may be of particular forensic value. But a judge must take all the evidence into account and make findings based not only on documentary evidence but also the witness evidence, (where relevant) the motivations of the parties, and the inherent probabilities: see for example the observations of Goff LJ to that effect in Armagas Ltd v Mundogas SA ("The Ocean Frost") [1985] 1 Lloyd's Rep. 1, 57 in the context of fraud, endorsed in Central Bank of Ecuador v Conticorp SA (Bahamas) [2015] UKPC 11 at [8]. I accept that documents may well assume a critical significance, for example in determining whether a witness is lying (which was the situation that Goff LJ was considering), but even in that case they are only part of an overall picture.'