Brown & Anor v Bennett & Ors

Permission to appeal should be refused where the proposed appeal has no real prospect of success. The appellate court reviews the decision below and does not ordinarily retry factual findings, particularly assessments of credibility based on live evidence and contemporaneous documents.

A trial judge may, under the Civil Procedure Rules, determine that a claimant has no case to answer without putting the defendant to an election, although that course should be approached cautiously because it may increase costs if the decision is wrong. A claimant must establish the pleaded case; a party cannot rely on an expectation of cross-examining opposing witnesses to cure evidential deficiencies. Voluntary particulars cannot substitute for an amendment required to overcome limitation.

Mr and Mrs Brown sought permission to appeal from the order of Neuberger J dated 18 October 2000. Their claims concerned alleged breaches of fiduciary and directors’ duties, negligence, dishonest assistance and conspiracy arising from the collapse of Pinecord Ltd and the sale of its assets.

At trial, after the Browns had completed their evidence, the judge accepted a submission that the defendants had no case to answer and concluded that the claims were bound to fail. He also made adverse credibility findings, refused an adjournment, refused an amendment concerning an allegedly uncalled-for rights issue, and rejected complaints concerning evidence, apparent bias and fair trial rights. The central question was whether any proposed ground disclosed a real prospect of a successful appeal.

1. Permission refused. Lord Justice Aldous concluded that none of the proposed grounds had a real prospect of success. The application was therefore refused.
2. The judge was entitled to determine the case without requiring the defendants to elect whether to call evidence. The principles in Alexander v Rayson [1936] 1 KB 169 remained applicable under the Civil Procedure Rules, and caution was required because failure to obtain an election could create additional costs and the possibility of a retrial. Nevertheless, the relevant question on the application for permission was whether the judge’s conclusion that the Browns had not made out their case was correct.
3. The Browns’ inability to call their expert orally did not establish unfairness. Her written report had been admitted and treated as complete evidence. The European human rights decision in Wolfgang Mauer v Austria (1997) Application No: 00016566/90 did not apply.
4. The refusal of an adjournment was a discretionary case-management decision. The Court of Appeal would interfere only if the judge had considered irrelevant matters, failed to consider relevant matters, or was plainly wrong. That threshold was not met.
5. The proposed rights-issue allegation was statute-barred. It did not arise from the same or substantially the same facts as the existing pleading, so amendment could not be permitted under section 35 of the statute of limitations. Voluntary particulars could not replace an amendment to the pleading. The allegation would also have failed on its merits because there was no sufficient evidence of available funding or causation.
6. The judge was entitled to reject the Browns’ credibility and merits arguments. The appellate court lacked the trial judge’s advantage of seeing the witnesses and comparing their evidence with contemporaneous documents. The Browns had been given an adequate opportunity to present their case, and their expectation of cross-examining defence witnesses did not relieve them of proving their own allegations.

• Court of Appeal (Civil Division): Permission to appeal from the order of Neuberger J dated 18 October 2000 was refused.
• High Court, Chancery Division: After the claimants’ evidence, the judge concluded that the claims were bound to fail and accepted the defendants’ submission that there was no case to answer.