Wiciejowska v Hart

Permission to appeal should be refused where the proposed grounds have no realistic prospect of success and there is no other compelling reason to grant permission. A decision to adjourn a trial is discretionary. Where the judge has considered the litigant’s circumstances, including representation, notice and preparation, an appellate challenge requires a realistic prospect of showing that the discretion was wrongly exercised. An appellate court should also respect first-instance findings based on witness credibility and documentary evidence unless the papers disclose a proper basis for doubt. Difficulties faced by a litigant in person do not, without more, establish that the trial was unfair.

Wiciejowska v Hart arose from the collapse of a restaurant venture involving the applicant and the respondent. The Central London County Court, before Judge Levy Q.C., accepted the respondent’s evidence concerning an executed loan agreement and an assignment of the lease and goodwill, and rejected the applicant’s allegations concerning the documents and the parties’ dealings.

The applicant sought permission to appeal. She argued that the trial should have been adjourned because her solicitors had come off the record and she lacked access to papers, and that the judge had reached the wrong conclusion on the merits. The central issues were whether either ground had a realistic prospect of success or disclosed another compelling reason for an appeal.

Application refused. Lord Justice Rix concluded that neither the proposed procedural ground nor the challenge to the merits justified permission to appeal.

1. Permission threshold. The court considered whether there was a realistic prospect of success on appeal or some other compelling reason for granting permission. Neither requirement was satisfied.
2. Adjournment and fair trial. The decision whether to adjourn was one for the trial judge’s discretion. Judge Levy had considered the history of the matter, including the fixing of the trial date, the applicant’s solicitors’ earlier concerns, their withdrawal one month before trial, and the applicant’s late request for an adjournment. He was entitled to conclude that she had ample notice of the difficulties and that an adjournment would cause injustice to the claimant. There was no realistic prospect of successfully challenging that exercise of discretion.
3. Merits. Judge Levy had heard the witnesses and was entitled to prefer the evidence of the Harts and their former solicitor, whom he regarded as independent, over the applicant’s evidence. The signed loan agreement and assignment, together with the documentary and evidential support for the respondent’s case, provided a proper basis for his conclusions. Nothing in the papers supplied for the application cast doubt on those findings.
4. The applicant’s status as a litigant in person, her difficulties with former solicitors and papers, and the fact that English was not her first language were considered carefully. They did not establish unfairness or provide another compelling reason for permission. The application was therefore refused.

• Court of Appeal (Civil Division) — Wiciejowska v Hart, [2001] EWCA Civ 1212 (18 July 2001): Lord Justice Rix refused permission to appeal.
• Central London County Court — Judge Levy Q.C. gave judgment on 13 March 2001 after a trial concerning the parties’ failed restaurant venture and the respondent’s financial claim.