Sarkany v Dezfouli

Permission to appeal should be refused where the proposed grounds disclose no basis for disturbing clear trial findings of fact or consequential relief, particularly where the judge relied on such evidence as he considered reliable despite untrustworthy witnesses. Allegations of intimidation require evidential support and are weakened where no complaint was made at trial. A considerable and unexplained delay in lodging an appellant’s notice may independently justify refusal where allowing the appeal would be unjust to the successful party. An unless order requiring an appeal bundle may be an additional relevant factor.

The claimant succeeded at trial in establishing sole ownership of a pizza business and an entitlement to the lease. The trial judge found that the relevant transactions were not induced by misrepresentation, declared the defendant a constructive trustee of the unexpired lease term, and awarded damages for exclusion from the premises.

The defendant sought permission to appeal after the trial judge had refused permission on the basis that the decision rested on findings of fact. The proposed grounds challenged the conduct of the trial, including alleged intimidation, witness handling, time limits and interpretation. The appellant’s notice was lodged almost a year late. The central issues were whether the proposed grounds disclosed an arguable basis for appeal and whether the delay independently justified refusal.

Application dismissed. Lord Justice Jonathan Parker, sitting alone, held that there was no prospect of a successful challenge to the trial judge’s findings or the relief granted.

1. The trial judge had faced unreliable oral evidence from both sides but had made clear findings based on the contemporary documents and such other evidence as he regarded as reliable. The Court of Appeal could identify no proper basis for interfering with those findings.
2. The complaints about the manner in which the trial was conducted disclosed nothing of substance. In particular, the allegations that witnesses had been intimidated were unsupported by evidence, and no complaint had been made at trial.
3. The considerable and unexplained delay in lodging the appellant’s notice was independently sufficient to refuse the application. It would have been wholly unjust to the successful claimant to permit the appeal to proceed after such a delay. The court also noted an unless order requiring the appellant to lodge an appeal bundle in accordance with the Civil Procedure Rules.

The formal order was: application dismissed.

1. Court of Appeal (Civil Division): On 31 July 2001, the application for permission to appeal was dismissed. [2001] EWCA Civ 1311
2. Birmingham District Registry: On 19 May 2000, His Honour Judge Boggis QC allowed the claimant’s claim, granted declarations and consequential relief, and awarded damages. Permission to appeal was refused on the basis that the decision rested on findings of fact.