Burrell v Norris

Permission to appeal should be granted where a proposed ground has a real prospect of success. This may arise where refusal of an adjournment arguably deprived a party of a fair opportunity to present material evidence, particularly alongside related family proceedings. An order declaring equal beneficial shares warrants reconsideration where credible evidence raises sole ownership or a different division of shares. An order for sale should reflect the statutory considerations governing trusts of land, including the property's use as a home and its effect on dependent children. An occupation-rent order requires fair notice and evidential support for the rental valuation. A stay may be appropriate where execution before the appeal would defeat its purpose.

Burrell v Norris concerned a flat acquired by Miss Norris under right-to-buy provisions. Mr Burrell claimed that he had provided almost all of the purchase money pursuant to a common intention that the parties would hold the property equally. Miss Norris claimed sole ownership.

Central London County Court proceedings resulted in an order declaring equal beneficial ownership, directing a sale, and retaining occupation rent from Miss Norris's share. The Court of Appeal considered applications for permission to appeal, an extension of time, and a stay of execution. The central issues were the refusal of an adjournment, the parties' respective beneficial shares, the propriety of the sale order in the context of family proceedings, and the evidential basis for the occupation-rent order.

Lord Justice Mummery granted permission to appeal on all proposed grounds. Mr Justice Wilson agreed. The Court also extended the time for appealing by one day and granted a stay of execution, with liberty to Mr Burrell to apply on 14 days' notice for discharge or variation.

1. Adjournment and related proceedings. The refusal of an adjournment gave the appeal a real prospect of success. Miss Norris had lost her publicly funded representation shortly before the hearing, had difficulty obtaining her papers, and needed time to obtain potentially material evidence from her sister in Tehran. The proposed adjournment would not have prejudiced Mr Burrell. The existence of related Children Act proceedings, including shared-residence orders, also raised a substantial case-management issue. A possible application for property to be settled on the child would provide a further reason for the property dispute and family proceedings to be dealt with together in the Family Division.
2. Beneficial shares. There was a real prospect of showing that the judge had wrongly accepted Mr Burrell's evidence without adequately addressing credible evidence that Miss Norris owned the property alone. Even if shared ownership were established, the evidence did not necessarily support an equal division. The parties' intentions, contributions, and the relevant property valuations could affect the proper shares.
3. Order for sale. The lower court had referred to section 15 of the Trusts of Land and Appointment of Trustees Act 1996, but its judgment note did not show that the relevant statutory considerations had been taken into account. Those considerations included the property's history as Miss Norris's home, its apparent role as the child's main residence, and the consequences of sale for rehousing the family. This provided a real prospect of successfully challenging the sale order.
4. Occupation rent. The late amendment introducing the claim was made without prior notice. The order was based on no expert rental evidence. The judge had acted on what he was told and his inclination that the suggested rental figure was correct. That gave the appeal a real prospect of success on the occupation-rent issue.
5. Final order. The appeal was allowed. The costs of the day's applications were ordered to be costs in the appeal.

• Court of Appeal (Civil Division)—On 10 July 2001, permission to appeal was granted on all grounds, time was extended, and execution of the sale order was stayed. The appeal was allowed, with the day's costs to be costs in the appeal.
• Central London County Court—On 24 April 2001, His Honour Judge Cowell refused an adjournment, declared equal beneficial ownership, ordered a sale, and directed retention of occupation rent from Miss Norris's share.