Gooden v Prior

On an application for permission to appeal against findings of fact, the Court of Appeal does not rehear the evidence. Permission requires a real prospect that the trial judge’s conclusion was against the weight of the evidence and could not properly be reached. The court must respect the trial judge’s advantage in hearing and assessing witnesses, particularly where the dispute depends on oral evidence. Additional evidence provides no sufficient basis for permission where it was known, or could reasonably have been obtained, before trial and is not likely materially to affect the result. Allegations of perjury or conspiracy likewise do not justify setting aside the judgment without a realistic prospect of demonstrating material error.

Peter Gooden applied for permission to appeal from an order of His Honour Judge Nash in the Canterbury County Court dated 2 March 1999. The judge had entered judgment for the defendant, Ian Prior, in the sum of £950 with costs, including awards arising from several incidents. The principal dispute concerned an altercation on 22 April 1996, in which the judge found that Mr Prior had used reasonable force to remove Mr Gooden from a house after Mr Gooden had forced entry.

Mr Gooden relied on proposed additional evidence, alleged discrepancies and perjury in the evidence, and an alleged conspiracy against him. The central issue was whether those matters gave a real prospect of showing on a full appeal that the trial judge’s findings of fact should be set aside.

1. Application dismissed. There was no real prospect of success on an appeal against the trial judge’s findings.
2. On questions of fact, the Court of Appeal does not rehear the evidence. Permission requires a real prospect that the judge reached a conclusion against the weight of the evidence and that, on a full hearing, the finding should be set aside. The trial judge had heard the witnesses and was entitled to assess which evidence to accept.
3. The proposed additional evidence did not satisfy that threshold. Evidence that a person was a plumber, or had an alleged history of violence, was either not materially probative or was capable of being obtained before trial. It therefore did not show that the trial judge’s conclusion was one which could not properly have been reached.
4. Differences between statements made to the police and later witness statements did not establish a sufficient prospect of appellate success. The judge was entitled to regard the later statements as correcting or expanding matters before trial, and the alleged inconsistencies did not demonstrate material error.
5. The alleged conspiracy and family connections did not themselves provide a ground for setting aside the judgment. The trial judge had determined the incident on the evidence before him, and there was no real prospect of success on appeal.

• Court of Appeal (Civil Division): Application for permission to appeal dismissed on 1 December 2000.
• Canterbury County Court: His Honour Judge Nash entered judgment for the defendant in the sum of £950 with costs on 2 March 1999.