Vella v Institute For Independent Business

On a second appeal, permission requires an important point of principle or practice or another compelling reason. A challenge merely disputing factual findings is insufficient. Permission may nevertheless be justified where the lower appeal may have been conducted unfairly, the court may have adopted an unduly narrow legal approach, or procedural non-disclosure may have prejudiced a fair hearing. In a mitigation dispute, the inquiry may extend beyond conventional alternative employment to attempts to improve earning capacity through self-employment. Granting permission identifies issues warranting appellate examination and does not determine their merits.

The Institute applied for permission to bring a second appeal against an order of His Honour Judge Marr-Johnson dated 16 February 2001. He had dismissed the Institute’s appeal from District Judge Lipton’s assessment of damages and ordered costs.

At trial, His Honour Judge Byrt found for Mr Vella on liability and adjourned the issue of mitigation, although failure to mitigate had not been pleaded or explored at trial. District Judge Lipton later held that Mr Vella had made reasonable efforts to mitigate, including seeking employment and attempting to establish a business. The proposed appeal raised questions about the fairness of the county-court hearing, the proper scope of the mitigation inquiry, and disclosure of bank statements.

Application for permission to appeal allowed. The application concerned a proposed second appeal and was governed by rule 52.13 of the Civil Procedure Rules.

1. Permission should not be granted unless the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it.
2. A proposed appeal based only on dissatisfaction with factual findings would not satisfy that threshold. The issues advanced here went further. They included whether the hearing before Judge Marr-Johnson had been sufficiently unfair to mean that there had not, in substance, been a proper second appeal; whether he had misdirected himself by treating the issue as confined to obtaining alternative employment; and whether failure to disclose bank statements had prejudiced a fair hearing.
3. The mitigation issue required examination in context. The earlier order had reopened mitigation despite the issue not having been pleaded or explored at trial. The later evidence concerned both conventional employment and efforts to develop a self-employed business. The Court of Appeal considered it arguable that the latter matters had not been adequately addressed below.
4. The judge noted that a litigant’s entitlement to a fair trial was embedded in the common law and that it might not be necessary to rely on Article 6 of the European Convention. No final ruling was made on whether Article 6 had been breached.

Permission was granted so that these matters could be examined on the substantive appeal. The grant did not indicate that the appeal would succeed.

Court of Appeal (Civil Division) — On 22 June 2001, permission to bring a second appeal was granted under rule 52.13 of the Civil Procedure Rules.

Mayor's and City of London County Court — On 16 February 2001, His Honour Judge Marr-Johnson dismissed the Institute’s appeal from District Judge Lipton’s order dated 6 December 1999 and ordered the defendant to pay the claimant’s costs.

District Judge Lipton — On 6 December 1999, the judge left the damages figure unchanged, finding that Mr Vella had made appropriate and reasonable efforts to mitigate his loss.

Trial before His Honour Judge Byrt — On 7 June 1999, Mr Vella established liability and the issue of damages was determined, with mitigation later adjourned for further consideration.