Holmes v Twickenham Ford

On a second appeal, permission should be granted only where the applicant identifies an important point of practice or principle, or another compelling reason. Where the proposed appeal depends on evidence omitted at trial, the applicant must provide a reasonable explanation for that omission. A newly located witness does not, without more, justify reopening the case. Permission may be refused where the proposed appeal has no real prospect of success, particularly where the missing evidence could and should have been obtained before trial.

The defendant sought permission to appeal from the decision of His Honour Judge Bishop at Staines County Court, who had dismissed an appeal from the District Judge’s judgment for the claimant. The underlying dispute concerned whether the claimant’s existing van had been agreed to be accepted in part exchange for a Ford Transit van. The District Judge accepted the claimant’s oral evidence and awarded repayment of the deposit.

The defendant relied on evidence from Mr Bond, the salesman involved in the negotiations, whom it had not called before the District Judge but had traced shortly afterwards. The central issue was whether that evidence provided a sufficient basis for a further appeal.

1. Application refused. Permission to appeal was refused.
2. The county court judge correctly held that the absence of a witness did not engage CPR 27.11(1), which concerns setting aside a judgment where a party was absent and unrepresented and had not received the required written notice. The rule did not provide a route to rehearing merely because potentially relevant evidence had not been called.
3. The judge was wrong to apply CPR 27.12(1), since that provision had been repealed with effect from 2 October 2000 by the Civil Procedure (Amendment number 4) Rules. The correct question was whether there was a real prospect of success on an appeal.
4. Any success depended on obtaining and persuading the court to accept Mr Bond’s evidence. The appellant had not provided a reasonable explanation for failing to obtain that evidence before the District Judge. The county court judge was entitled to view the asserted chance discovery of Mr Bond shortly after judgment with suspicion and to conclude that the appellant had relied on documentary evidence because it expected to succeed without him.
5. The matter was also a second appeal. No important point of practice or principle, and no other compelling reason, had been identified. The papers disclosed no possible basis on which permission could properly be granted. The absence of oral argument did not justify an adjournment.

• Court of Appeal (Civil Division): application for permission to appeal refused in [2001] EWCA Civ 1121.
• Staines County Court: His Honour Judge Bishop dismissed an appeal from the District Judge’s decision on 10 January 2001.
• Staines County Court: District Judge Freeman gave judgment for the claimant on 31 October 2000.