Court of Appeal reopens reflective loss appeal due to apparent bias

25 July, 2022

In UCP Plc v Nectrus Limited [2022] EWCA Civ 949 the Court of Appeal (Sir Geoffrey Vos MR, Underhill LJ and Lewison LJ) granted Nectrus’ application to re-open its appeal pursuant to CPR 52.30 on the issue of reflective loss.

The case considers the circumstances in which judges should recuse themselves from determining an application to re-open an appeal under CPR 52.30. The case also considers the process to be adopted by the Court of Appeal when parties apply to set aside permission to appeal and was atypical in that it was a second application under CPR 52.30.

The background to the application is that Nectrus had been granted permission to appeal on the issue of reflective loss on a contingent basis, pending the decision of the Supreme Court in Marex v Sevilleja [2021] AC 39. Once that judgment had been handed down, Nectrus wrote asking that permission to appeal be confirmed, alternatively that directions be given if the judge would like further submissions. UCP wrote asking for the converse of Nectrus’ request, that permission to appeal be refused, alternatively that the judge provide directions for further argument.

The judge decided the matter on paper without hearing further from the parties and refused permission to appeal on the basis that Nectrus’ reflective loss argument was unarguable in light of the decision of the Supreme Court in Marex.

Nectrus sought to challenge that decision by applying to set it aside under CPR 3.3(5) as a decision made on the judge’s own initiative. That application was not issued on the basis of a direction from the judge that his decision refusing permission to appeal had not been made on his own initiative, but in response to the correspondence. Nectrus was instead directed to apply under CPR 52.30 if it wished to set aside the decision, which it proceeded to do. Nectrus asked the judge to be recused from dealing with that application. The judge directed the matter be listed for a hearing before him, at which he rejected the application, including on the basis that Nectrus’ case on reflective loss was unarguable.

Nectrus applied again under CPR 52.30 following the decision of the Privy Council in Primeo Fund v Bank of Bermuda [2021] UKPC 22, which at [61] found that the judge had been wrong to decide that Nectrus’ appeal was unarguable following the decision of the Supreme Court in Marex. Nectrus argued that there had been apparent bias in the judge’s conduct leading up to the first 52.30 application, and that if that was correct, on the application of the usual principles applicable to a CPR 52.30 application the appeal should be re-opened.

The Court found that the judge ought, in the very unusual circumstances of this case, to have recused himself from hearing the first 52.30 application, “in essence because his own fairness in making earlier procedural decisions was under direct challenge” (see [20]), and particularly since “the judge is said to have adopted a process which was unfair in more than one respect” (see [23]).

The Court further found that the integrity of the procedure in refusing permission to appeal was critically undermined. The Court found that the judge was mistaken not to call for further submissions from the parties on Marex, and the criteria for reopening the appeal under CPR 52.30 were satisfied. The Court confirmed that Nectrus had permission to appeal on reflective loss.

Paul McGrath QC and Andrew Legg appeared with Ed Blakeney for Nectrus, instructed by Hugh, Cartwright & Amin. Huw Davies QC and Felix Wardle appeared for UCP, instructed by Skadden, Arps, Slate, Meagher & Flom.

A copy of the decision is here.