THE COURT OF APPEAL THRESHOLD: LOOKING AT CASES WHERE PERMISSION TO APPEAL WAS REFUSED

The Law Society Gazette today reported that the threshold for appealing to the Court of Appeal is not to change.  There is, however, a removal of the automatic right to an oral hearing when seeking permission from the court.

Coincidentally Bailli today has a number of reports of oral hearings where permission to appeal was refused.  Reading this type of report is an important part of a litigator’s education. It is only those cases where permission is granted that make their way into the law reports. The fact that many applications flounder can be overlooked and give a wrong impression of the appeal process.

Here we look at a number of cases where permission to appeal was refused.

UNSUCCESSFUL APPLICATION OBJECTING TO LATE ADMISSION OF EVIDENCE

In Law -v- Raleys Solicitors [2016] EWCA Civ 642, Lady Justice Macur refused a second appeal against a decision by the District Judge to allow a defendant rely on Facebook and surveillance evidence that was not disclosed prior to the service of witness statements.

The application for permission to appeal was refused.

1. The grounds of appeal sought to be argued before the full court are nine in number. They relate, it has to be said, principally to the decision on the particular facts. I struggle to see that any of them, if accurately depicting the judgment of District Judge Pema in the respective manner described, raise anything but issues that are fact specific to the case.

2. CPR 52 rule 13 applies. Permission to make a second appeal should only be granted where there is an important point of principle or practice involved that is one not previously determined by the Court of Appeal or there is some other compelling reason to grant permission. I find that neither limb of the rule applies.

3. The contentions of Mr Elgot amount to this: in the case where the court is satisfied that the defendants, or in some cases one could say claimants, deliberately withhold documentary evidence, including surveillance evidence, in order to challenge the assertions of the other party and take their chances in failing to make timely disclosure in accordance with the rules and as urged by the now Master of the Rolls and Carnworth LJ in Watford Petroleum Ltd v Interoil Trading SA & others [2003] EWCA Civ 1417, then there must inevitably be a sanction imposed which is to prohibit the utilisation of that evidence. The authorities and the rules quite clearly do not lead to that conclusion.

4. The District Judge’s judgment in this case was comprehensive, in some parts difficult to follow no doubt, but, given the strictures of time and applying the principles of Piglowska, it is not appropriate to apply a yardstick of exact and precise use of vocabulary. The principles that he adopted and the arguments made by Mr Elgot which succeeded are dealt with adequately in paragraphs 38 onwards. In those circumstances it seems to me that the applicant fails to make good any point of principle or practice, nor can he urge other than that this District Judge reached a decision that in his discretion was available to him on the facts and accorded with the overriding objective of the Civil Procedure Rules to deal with claims justly, proportionately and efficaciously. In those circumstances, this renewed application is dismissed.

DEFENDANT’S ATTEMPT TO APPEAL AGAINST FINDING OF CLINICAL NEGLIGENCE DISMISSED

In KA -v- East Midlands Ambulance Service NHS Trust [2016] EWCA Civ 647 Lady Justice Macur refused the defendant’s application for permission to appeal against a finding of clinical negligence on the part of ambulance crew.

This appeal was complex in that the defendant was also attempting to appeal against a decision to allow a medical report in evidence which was unredacted.  The judge rejected both arguments.

1. I do not consider that Mr Spencer’s arguments as to the deficiencies in the judgment are made out in any regard, or by reference to the term “horns of a dilemma,” accepted by Dr Longstaff in accordance with the note of evidence made by Mr Spencer’s solicitor, when seen in context of the whole of her evidence. In reality, the submissions of Mr Spencer, if accepted on this point, would amount to little short of suggesting that wherever there were two courses of action, and providing that the emergency technicians were exercising some judgment rather than acting against guidance and otherwise than like robots, that there would never be a case where negligence could be established.

2. In this case, the judge made clear that the established authority of the majority and reasonable body of medical opinion was made good and underlined by the evidence of Dr Longstaff. He was entitled, therefore, to reach the decision that, well meaning though the technicians were, they were negligent. He had no need to deal with each and every submission made on behalf of the Trust, having indicated the basis of his decision, against which he had heard all criticisms and all commentary as appropriate during the course of closing submissions.

3. In these circumstances, this being an application for permission to make a first appeal, I ask myself whether or not the judgment of the court below was wrong. I cannot see that there is any prospect of successfully challenging the decision and therefore conclude that the answer is no, and find no other compelling reason to give permission to appeal, the angst caused to these conscientious technicians being regrettable, but not being a sufficient basis upon which to take this case forward. In so doing, I confirm the decision of Tomlinson LJ, the single judge who dealt with the case upon the papers.

4. It is unnecessary to address many of the points raised by Mr Spencer in the statement filed correctly in pursuant to CPR 52.13(1), since many in fact erroneously avoid the point raised, first by the issue of a second appeal, and next by the findings made by the judge upon the basis of his assessment of the expert evidence.

5. The applications are therefore dismissed, with all due thanks to Mr Spencer for his focussed submissions.

MOORE IS NOT LESS: WHO OWNS THAT STATUE?

In London Borough of Tower Hamlets -v- London Borough of Bromley [2016] EWCA Civ 616 Lord Justice McCombe refused permission in relation to a finding that a Henry Moore sculpture belonged to Tower Hamlets. Tower Hamlets had acquired title by converting the statue to its own use and Bromley’s title was statute barred.

1. It seems to me that I find myself in entire agreement with what Kitchin LJ said on his consideration of the case on the papers. This was a case where the London Borough of Tower Hamlets considered itself for many years to be the owner of this item. It may not have given particular thought to it, but it considered it was the owner, and when it did what it did, from 1997 in particular onwards, it acted as such; it did not take the slightest regard to the potential title of anybody else, it never thought probably that anyone else was involved at all. As is put in the helpful respondent’s statement which has been provided pursuant to the practice direction, and I quote from paragraph 6:

i. “The Respondent did not merely move the sculpture out of the way for safekeeping whilst buildings around it were being demolished: it treated itself as having the right to lend the sculpture to a third party at the other end of the country for a 3 year term, and to determine how the sculpture should be dealt with during that term, and what should happen to it at the end of it.”

1. One can add the same point in respect of the later loan when the item had to be removed from site for the purposes of construction activities. I also agree with the respondent in paragraph 8, when it says:

i. “The Respondent dealt with the sculpture as its own for the better part of a quarter of a century, taking responsibility for it, whilst the LRB and the Appellant showed no interest in it whatever.”

1. It seems to me clear that Tower Hamlets assumed itself to be the owner from the passage in the evidence of Mr Galpin, to which Mr Straker referred me this morning in paragraph 58, where he says:

i. “The Council has been assumed to be, and has acted in accordance with being, the legal owner of the Sculpture since the events surrounding the transfer of the Stifford Estate and the obligation of GLC in 1985 and 1986.”

1. In my judgment, Tower Hamlets simply regarded itself as the owner, and as the owner treated itself as such and removed this item from the London area for its own purposes and its own use, inconsistently with the title of Bromley.

2. In my judgment, this proposed appeal has no prospects of success and I refuse the renewed application.

DECIPHERING ELABORATE PLEADINGS DOES NOT GIVE GROUNDS FOR APPEAL

In NGM Sustainable Developments Limited -v- Wallis [2016] EWCA Civ 619 Lord Justice McCombe refused a claimant’s appeal where its claim for fraudulent misrepresentation had been dismissed.

1. In my judgment, ably argued though those points are by Mr Collings, I do not consider that they offer any real prospect of success on the appeal. First, I think the respondents and the judge were correct in their assessment of what the case being made was. It was that the defendants never intended to enter into a loan by way of long term finance in any circumstances, and this was all a distinct sham. The case seems to be that the representation was that there was an intention to enter into a funding arrangement by way of the Side Letter and no other terms whatsoever, notwithstanding the vagueness of the Side Letter itself.

2. Secondly, pleading point or no, that is what the case was. In my judgment, Mr Collings cannot say that the words “or otherwise” in paragraph 98 were inserted out of mere caution. The allegation was far too important to the case for that. The inference sought to be drawn by Mr Collings and the claimant appears very clearly in paragraph 98B of the pleading, which Mr Collings reminded me of this morning. I will not quote that again, but the parties know what I mean. In any event, pleas of fraudulent misrepresentation need to be made in the clearest possible terms and with the utmost specification and particularisation.

3. Thirdly, and perhaps most importantly, as the judge said in paragraph 92 in a passage that Mr Collings himself relies on, he had seen the witnesses and the documents and found no evidence of dishonest misrepresentation at all. It is clear from other paragraphs of the judgment that the judge reached the conclusion that this negotiation fell apart not for any purposes of any misrepresentation, but for two reasons: first, the claimant had no money and was desperate; and secondly, there was a spectacular falling out between two important protagonists on respective sides of the negotiation.

4. In my judgment in the end, this was not a procedural error at all. As the defendants allege in their short response, the first one, dated August 2015, the claimant simply lost on the facts.

5. The single judge also rejected the prospects of appeal in relation to relief, which Mr Collings meets in his advocate’s statement. I ought to deal with that, although he did not have time to amplify it in his oral submissions. He said as to that in paragraph 9:

i. “The final point made by the learned Lord Justice in refusing permission on the paper [that is Simon LJ] was that the judge found that the claim would in any event have failed on the issue of damages. This is largely accepted. However, there are two heads of relief to which the claimant is entitled: rescission, and a residual point on damages. These are addressed at paragraph 7 of the appellant’s skeleton argument, and this appeal therefore concerns substantive interests and rights.”

1. The first point made in that paragraph is hardly the fare of a successful appeal, and I also accept as to this part of the case what the defendants say on this point in paragraph 13 of their statement made under practice direction 52C.19 in resistance of the grant of permission. However, primarily the claim failed on the face of extremely elaborate pleadings which the learned judge had to decipher by way of understanding of what was being alleged and what the falsity was simply on the facts as he found. He found there was no fraud and in my judgment it does not avail the claimant, ably as its case is put by Mr Collings, to rely on a pleading case of the nature that is now made. The Side Letter did not bear the moment that the claimant sought to put on it and the representation alleged was not proved to be false.

2. In the circumstances, in spite of the careful argument, this renewed application is refused.

BORDERING ON BEING TOTALLY WITHOUT MERIT

In Islamic Investment Company of the Gulf (Bahamas) Ltd -v- Symphony Gems [2016] EWCA Civ 636 Lord Justice Jackson refused applications by both sides.  The defendant’s solicitor had started to behave in a bizarre manner, fabricating judgments, advices and even conferences with Leading Counsel. The judge at first instance had set aside some, but not all, of the orders made.

In relation to the claimant’s appeal:

1. Taking matters quite shortly, I do not see any force in this proposed appeal by the claimant. My view of the matter is the same as that taken by Tomlinson LJ. One needs to bear in mind the functions of the different civil courts. The Commercial Court sitting at first instance goes through the correspondence and the documents, the judge there grinds through the detail and makes findings of fact, drawing not only on the material before him but also his long experience of commercial litigation. It is not the function of the Court of Appeal, and the Court of Appeal does not have the time or the resources, to second-guess all those findings of fact and to trawl back through the bundles unless there is an error of law which calls for correction. Mr Ayres has, in my view, failed to point to any error of law which calls for correction and has failed to make out any basis upon which this court could take a different view of the documents from that taken by the commercial judge.

In relation to the defendant’s appeal.

1. Again, I am not persuaded by those submissions. The judge has carried out a very careful analysis of the history of the litigation with reference to the judgments given, the correspondence exchanged and the evidence before the court. Hamblen J has concluded that although Mr Benson’s conduct is open to criticism during 2009, the same order would have been made as was actually made on 1 October 2009. As Hamblen J puts it in paragraph 126(1) of his judgment:

“Even if one accepts all the criticisms made there are a number of difficulties with RM’s case. In particular:

(1) None of these failures could have affected David Steel J’s finding that RM had been in contempt in his complete failure to comply with Master Miller’s order of 17 January 2007. He had been ordered to produce the documents for a hearing of 11 March 2008. He failed to produce any documents. That pre-dates any of the criticisms made of Mr Benson.”

1. It seems to me that paragraph 126(1) and the subsequent subparagraphs of that paragraph in the judgment present a formidable obstacle for the second defendant’s proposed appeal.

2. I bear in mind at this point the submission made by Mr Ayres that the Court of Appeal has got to be very hesitant before setting aside orders or overturning judgments on the ground of incompetence by one party’s representation. There does need to be finality in litigation and it is only in truly exceptional circumstances that the court will set aside an order under Rule 3.1(7) because of misconduct by a party’s lawyers.

3. I do not think that the test set out in Tibbles has been met by the second defendant in respect of any orders made before October 2010.

4. Mr Tomson submits that it is suspicious that Mr Benson only charged £25,000 for his services after 4 October 2010. What was his motive for the fraud? Perhaps he was being paid by some third party whose interests were adverse to those of the second defendant.

5. I do not know. That is all pure speculation. It seems to me that there is no proper basis for the Court of Appeal to reopen the very careful findings of fact made by the commercial judge in this case. I take the same view as Tomlinson LJ. I can well understand why Tomlinson LJ came close to certifying these applications as being totally without merit.

6. In the result, therefore, I refuse both applications for permission to appeal.