You are a judge. You heard an eleven-day trial, which included extremely complicated economic evidence, a couple of months ago. You finally disseminated your long judgment in draft to the parties. Oh dear. The claimants have emailed your clerk, pointing out that you have quoted a principle that has been overturned in later case law. If you had in fact adopted that principle, it may have affected the level of damages you awarded to the claimants. In fact, you didn’t adopt it. You didn’t need to. However, to do the claimants justice, you re-review your findings. You still don’t think any adjustment is warranted. But what do you do about the quotation in the judgment? Delete it and rewrite the offending passages? Add a clarificatory footnote? Considering the consequences of the judgment in Granville Technology Group Ltd & Ors v LG Display Co Ltd & Anor [2026] EWCA Civ 409, it now appears likely that, whether you put the principle in or take it out, your judgment is going to be appealed in any event.
Background
Adjudicating on a follow-on damages claim, Pelling J awarded the claimants in Granville considerably less than they had claimed. In order to quantify the damages due to the claimants, Pelling J had determined issues including the amount of overcharge applied by the defendants (which had been found to be participants in a cartel).
Setting out the legal framework to be followed when it is not possible, on the evidence, to arrive at a precise figure for a claimant’s loss, Pelling J quoted part of the judgment in Asda Stores Ltd v. Mastercard Inc [2017] EWHC 93 (Comm), in which Popplewell J advocated the adoption of a “cautionary approach”. This was to the effect that, where the court is compelled to use a “broad brush” in the assessment of damages, it should err on the side of under-compensation, giving the defendant the benefit of the doubt. In a later paragraph setting out the Judge’s findings on the level of overcharge, Pelling J again referred to the cautionary approach.
However, in Britned Developments Ltd v ABB AB [2019] EWCA Civ 1840, the Court of Appeal expressly said that the cautionary approach was wrong. Rather than erring on the side of under-compensation, the court should aim to give the right amount of compensation, without erring in either direction. After Pelling J handed down his judgment in draft, the claimants drew his attention to this issue. Pelling J added a footnote to the paragraph of his judgment referring to Asda (but not the later paragraph), saying he had not made any adjustments to quantum as a result of the cautionary approach. In the same footnote, he also noted that he had re-reviewed his conclusions in order to ensure he had applied the broad-brush approach without qualification.
Appeal judgment
The Court of Appeal commended Pelling J’s frankness in acknowledging his error. They did not doubt that he had, conscientiously, reviewed his conclusions. Importantly, they also reiterated that, in a case such as this, an appellate court may only interfere if the judge’s findings were plainly wrong, in the sense that they were based upon an identifiable error or were findings which no reasonable judge could have reached. Indeed, the Court of Appeal stressed that this limitation applied “with particular force” when, as in the present case, the judge’s findings followed the outcome of a lengthy trial with highly detailed and technical expert evidence on interlocking issues and where it was apparent from the judgment that the judge engaged carefully and thoughtfully with that evidence.
Notwithstanding, the Court of Appeal determined that it had to proceed on the basis that when Pelling J said that he had adopted the cautionary approach when arriving at his final figure for the overcharge, he had done what he said he was doing. The Court of Appeal therefore considered that the only realistic and proportionate course, therefore, was for it to decide for itself what adjustment to the judge’s figures was required. This was because it would not be right to send the matter back to the Judge, who had already said that there should be no adjustment, and it would be disproportionate to order a trial of the issue before another judge. As a result, the Court of Appeal applied a modest uplift (amounting in practice to around 2%) to the overcharge percentages found by Pelling J.
More questions than answers
So, what should Pelling J have done? It is easy to say that he should not have fallen into error in the first place. But he did. Judges do. Had Pelling J made an adjustment to the overcharge percentages he had found, based on what he said in his footnote, it would only have been in response to being notified of the error and it would not have been (or would have been perceived as not being) a genuine determination of the level of overcharge. It would also have opened the decision up to appeal by the defendants. Had Pelling J retained the overcharge percentages he had found but amended the judgment to remove references to the error, doubtless the claimants would still have appealed.
Would the outcome in the Court of Appeal have been different had Pelling J footnoted all references to the cautionary approach, or adjusted the language of his second reference to it?
And what of the Court of Appeal amending the overcharge percentages, despite not having carefully read and sat through the expert evidence upon which the initial levels were based? Even though they were wielding the broad axe, has the Court of Appeal offended the ruling in BritNed in a different way?
I suspect the answer to these questions may lie in a further appeal.
