Fayers Legal Services Ltd & Anor v Day

Permission to appeal should be refused where the proposed grounds disclose no prospect of persuading the full appellate court that the trial judge was so wrong in assessing witnesses and documents that the order should be overturned.

Appellate restraint is especially important where the trial judge heard extensive oral evidence and tested it against contemporaneous documents and other evidence. Minor discrepancies or factual errors confined to individual details do not justify permission when the overall evaluation was careful, balanced and well supported.

Mr Howard Day applied for permission to appeal from an order made by Patten J on 14 May 2001 after a 13-day Chancery Division trial. The proceedings concerned alleged misappropriation of company funds and Mr Day’s alleged liability for dishonest assistance, knowing receipt and related matters.

Earlier summary judgment had been entered against Mr Day. On 9 December 1999, the Court of Appeal held that the case against him should proceed to trial so that the evidence could be tested. Patten J rejected the claim that Mr Day was a de facto director but found liability for dishonest assistance and also upheld a separate claim by Mrs Taylor.

Mr Day challenged numerous factual findings, including the judge’s assessment of witness evidence, documentary evidence and his conduct at promotional meetings. The central issue was whether those grounds gave any realistic prospect of overturning the trial judge’s conclusions. The Court of Appeal dismissed the application: [2001] EWCA Civ 1257.

1. Disposition. Lord Justice Robert Walker dismissed the application for permission to appeal. The proposed appeal was essentially an appeal on fact and was hopeless.
2. The court carefully considered Mr Day’s criticisms, while recognising the difficulties he had faced as a litigant in person during a lengthy trial and the absence of a full transcript. The absence of a transcript was not itself criticised, but it meant that the appellate court could not refer to one when assessing the proposed grounds.
3. The trial judge had seen and heard the witnesses and had given a clear and thorough judgment. His acceptance of important evidence, particularly from Mr Frieze, followed careful testing against documentary evidence and other oral evidence. A minor discrepancy about where a meeting had taken place was only one detail and did not undermine the overall assessment.
4. The judge’s findings concerning Mr Day’s knowledge and involvement were supported by contemporaneous documentary evidence. In relation to the Florida property, the judge reached a clear conclusion from the correspondence and other documents. The evidence from witnesses who attended the promotional meetings was also accepted after assessment of their reliability, despite their financial losses.
5. There was an acute conflict of evidence concerning Mrs Taylor’s separate claim. The judge expressly addressed it, accepted Mrs Taylor’s evidence and rejected Mr Day’s account. There was therefore no sufficient basis for arguing that the judge had ignored Mr Day’s defence.
6. The full Court of Appeal had no prospect of being persuaded that the trial judge’s evaluation of the witnesses and documentary evidence was so wrong that his order should be overturned. Order: application for permission to appeal dismissed.

1. Court of Appeal (Civil Division) On 12 July 2001, permission to appeal from Patten J’s order was dismissed: [2001] EWCA Civ 1257.
2. High Court, Chancery Division Patten J determined the parties’ claims after a 13-day trial and found Mr Day liable for dishonest assistance, while rejecting the claim that he was a de facto director.
3. Court of Appeal On 9 December 1999, the court allowed Mr Day’s earlier appeal against summary judgment and directed that the evidence should be tested at trial. No citation is stated in the judgment.
4. High Court Collins J had entered summary judgment against Mr Day and Mr Fayers, ordering accounts for substantial sums. No citation is stated in the judgment.