I recently acted as junior counsel in Wolff v Trinity Logistics USA Inc, where the Court of Appeal considered the circumstances in which a respondent to an appeal requires permission to run a defensive case. The issue arose in the following context: Trinity USA’s claim against Mr Wolff in procuring breach of contract succeeded at first instance, but its claims in conspiracy, conversion and deceit were dismissed by Sara Cockerill QC (sitting as a Deputy Judge of the High Court). Mr Wolff appealed against the judge’s decision on procuring breach of contract and Trinity USA sought to challenge the dismissal of its claims in conspiracy and conversion.

Sir Timothy Lloyd, with whom Longmore and Newey LJJ agreed, concluded that the contention by a respondent that the judge was wrong to dismiss one or more distinct claims as something that requires and amounts to an appeal, requiring permission to appeal under Practice Direction 52C.8(1). Where a separate and distinct claim has been dismissed, whether or not the order of the lower court requires variation is not the material question (PD 52C.8(2)), and the decision cannot be upheld under PD 52C.8(3).

This approach could, as was submitted on behalf of Trinity USA, put a defensive respondent in difficulty on a second appeal, especially where they are a claimant. For example, where the appellant’s appeal justifies permission on the second appeal test but the defensive cross-appeal does not justify such permission, the respondent’s freedom to run defensive points may be curtailed.

Sir Timothy Lloyd accepted that a respondent defendant would, in all appeals, have a wider range of defensive positions open to it than a respondent claimant. In any event, he considered that the issue in relation to second appeals was unlikely to occur frequently in practice, and if the Court of Appeal considered that there was merit in the challenge to the rejected claim, it would be likely to give permission for the respondent to a second appeal to pursue it under CPR 52.7(2)(b): “The Court of Appeal will not give permission unless it considers that – there is some other compelling reason for the Court of Appeal to hear it.”

This submission did not, therefore, carry the point in favour of Trinity USA.

Accordingly, the decision of the Court of Appeal clarifies that, in practice:

  • An order does not necessarily need to record the basis (or cause of action) on which a claimant’s claim succeeds or fails.
  • Where the claimant asserts two or more claims, one of which is successful and the other is dismissed, and the defendant appeals against the judgment on the first claim, then if the respondent wishes to argue that the court below was wrong to dismiss its other claim against the appellant and that the order below should be upheld on that basis, that assertion amounts to an appeal against the order. Such a respondent requires permission to appeal.
  • It is open to a defensive respondent on a second appeal to the Court of Appeal to seek permission to cross-appeal on the basis that there is some other compelling reason for the Court of Appeal to hear that cross-appeal.