Thatcher v Douglas & Anor

On an application to amend a notice of appeal, the court may distinguish between a freestanding allegation that the lower-court judge acted unfairly and reliance on identified omissions or failures as supporting a general challenge that findings were against the weight of the evidence. Leave was refused for amendments alleging unfairness, deliberate omission, unfair inclination, or influence from matters extraneous to the evidence. Specified omissions and a pleaded failure could be relied upon under the weight-of-evidence ground. An uncertain further ground was left open pending fuller submissions.

The defendants appealed from Portsmouth County Court, where the case had been heard by Mr Recorder Donne. Before the appeal was argued, they sought leave to amend their notice of appeal. The proposed amendments alleged unfair or deliberate omissions, unfair inclination towards the respondent and unfair influence arising from the respondent’s wife’s illness and correspondence to the Legal Aid Board. An alternative application sought to rely on specified omissions and a failure in support of a general ground that the recorder’s findings were against the weight of the evidence. The court also considered a further proposed ground, paragraph D, but deferred ruling because its arguability depended on fuller knowledge of the case and the way the point would be presented.

The ruling was delivered by Lord Justice Nourse on behalf of the Court of Appeal.

1. Amendments alleging unfairness. Leave to amend the notice of appeal was refused insofar as the proposed amendments alleged that the recorder had acted unfairly, deliberately omitted matters, or had been unfairly inclined towards the respondent or his evidence. Paragraph A was disallowed in its existing form.
2. Specific proposed allegations. The court also disallowed paragraph B, alleging that the recorder had been unfairly influenced by knowledge that the respondent’s wife was ill, and paragraph C(a), alleging unfair influence from correspondence by the respondent’s solicitor asking the Legal Aid Board to reconsider legal aid.
3. Reliance on omissions and failure. The alternative application was allowed to the extent that the omissions identified in sub-paragraphs (a) to (l) of paragraph A, and the failure alleged in paragraph C(b), could be relied upon in support of the general ground that the recorder’s findings were against the weight of the evidence.
4. Paragraph D. The court was not yet satisfied that paragraph D disclosed an arguable ground of appeal. It therefore deferred ruling on that proposed amendment until it had heard more about the case and the manner in which the point would be advanced.

The court stated that its reasons for refusing the amendments alleging unfairness would be given when judgment on the appeal was delivered.

• Court of Appeal (Civil Division): Appeal from Portsmouth County Court. The court allowed the amendment application in part, refused the specified allegations of unfairness and influence, permitted identified omissions and a failure to support the weight-of-evidence ground, and deferred ruling on paragraph D.