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From: David Cavend
To:
Parsons
Gideon Cohen Owain Draper
Ce:
Subject: Grounds of Appeal against CIT
Date: Thu, 21 Mar 2019 13:18:57 +0000
Importance: Normal
Inline-Images: image001 jpg
Dear Tom,
I have seen you recent email to the clerks regarding future actions.
One future action that has not been mentioned - that I have been quietly working on, is the grounds of
appeal against the CIT — which is quite a task given how much he has got wrong !
Although we have until after the time scheduled for the Horizon trial to apply to the Court of Appeal for
permission, my sense is that it would be extremely useful to have an early draft of the (main) grounds of
appeal to show the Court of Appeal on the appeal against refusal of the recusal — as it will be helpful so we
can explain to them the nature and extent of the intended appeal against CIT.
My thinking is as follows. Faced with a recusal application the Court of Appeal may be concerned not to
rubbish the whole of the completed (and expensive) CIT process (Horizon trial will already be undermined).
If they can be assured (assisted by a draft grounds of appeal) that we would not be seeking a retrial — but a
significant re-write of the CIT judgment- they may be less hostile. A draft grounds of appeal would show:
) That the appeal is mainly on points of law.
) That certain of the irrelevant findings of fact/observations are sought to be quashed — very unusual but
possible.
) That the appeal on fact is otherwise limited.
That said — the appeal against CIT will likely be up to 5 days. They may shy at the extent of the task —
although putting the law right is what they are there to do. The alternative is to have a two week trial in front
of a clever Commercial Court Judge who would make light work of this — thoughts ?
In doing the drafting it has also occurred to me that tactically given the situation they are now in - PO might
want to consider accepting implied term (t) (or a slight variety on it) ie. that PO have a duty of reasonable
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care when its dealing with matters associated with the accounting process with SPM’s. This would be on the
basis that it is “necessary.” This coupled with the Agreed Implied terms of “necessary co-operation” should
give the Court of Appeal a degree of comfort to deal with the problems highlighted by the Judge.
I thought I would mention this now so that people could start thinking about it. It would also focus yet
further attention on the extent that other implied terms were “necessary”.
Best,
David Cavender Q.C.
One Essex Court ) ONE ESSEX COURT
Temple
London EC4Y 9AR WY
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www.oeclaw.co.uk
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