Balogun v Hassan

Permission for a second appeal requires an important point of principle or practice, or another compelling reason. The threshold is high. A challenge to summary judgment must identify more than an assertion that disputed matters can be proved at trial: the claimant must show a real, rather than fanciful, prospect of success.

The absence of documentary proof of ownership does not, by itself, create a point of principle in a conversion claim. The court must examine the reality and substance of the asserted loss and the evidence advanced. Where the claim remains shadowy and lacks sufficient proof of a bona fide claim, permission should be refused.

Anita Balogun claimed that she had been the tenant of a shop and that Ekram Hassan, the landlord, had unlawfully repossessed it and converted stock, fittings and other items. The claim was initially met with summary judgment in favour of the defendant by District Judge Stephenson.

His Honour Judge Cooke dismissed the claimant’s appeal in the Central London County Court on 8 September 2000. The claimant sought permission for a further appeal and applied to adduce additional evidence. The central questions were whether the proposed appeal satisfied the statutory threshold for a second appeal and whether the claim had a sufficient evidential foundation to proceed to trial.

Lord Justice Thorpe delivered the judgment, with Lord Justice Dyson agreeing.

1. Section 55 of the Access to Justice Act 1999 imposed a high threshold for a second appeal. Permission could be granted only if the applicant demonstrated an important point of principle or practice, or another compelling reason.
2. The summary judgment test required a real, rather than fanciful, prospect of success. That test was clear and had been correctly applied by both courts below. The assertion that the issues could be proved by oral evidence at trial did not answer the evidential deficiencies identified in the claim.
3. The applicant’s contention that a conversion claim should not fail merely because there was no documentary evidence of ownership disclosed no important point of principle or practice on the facts. The decisive issue was whether the claimant had produced sufficient evidence of a bona fide claim to justify a trial. The courts below had properly examined the reality and substance of the asserted loss.
4. The claim remained shadowy, with uncertainty over the items allegedly converted and over the claimant’s entitlement to compensation. Although the applicant referred to possessory title, the claim had not been advanced below on a right-to-possess basis. The court did not determine the abstract legal issue, since the evidence actually produced was insufficient.

There was no compelling reason to permit a further appeal. The application for permission to appeal was dismissed. There was no order as to the costs of the hearing, subject to public-funded costs assessment where appropriate.

• Court of Appeal (Civil Division): On 9 July 2001, the application for permission to bring a second appeal was dismissed under section 55 of the Access to Justice Act 1999: [2001] EWCA Civ 1343.
• Central London County Court: His Honour Judge Cooke dismissed the claimant’s appeal on 8 September 2000.
• District Judge: District Judge Stephenson granted summary judgment for the defendant on 2 June 2000.