Zanjani v Green

Permission to appeal should be refused where the applicant identifies no ground with a real prospect of success. The Court of Appeal will rarely interfere with factual findings based on evidence from witnesses whom the trial judge saw and heard, absent an identifiable error. Proposed evidence from an unavailable witness will not justify permission where, even if accepted, it could not materially affect the findings. Generalised evidence about a party’s previous work may not displace detailed expert evidence addressing the specific defects in issue.

The claimant sought payment of two invoices for electrical and other refurbishment work at a property. The defendant alleged defective work, terminated the contract, and counterclaimed damages for remedial work and related losses. The Hastings County Court, sitting before Judge Coltart on 19 December 2000, dismissed the claim and awarded the defendant £3,042.22 on her counterclaim.

The claimant sought permission to appeal. He relied on the absence of evidence from Mrs Vidokovic and Mr Phoenix and challenged the findings concerning the quality and completeness of the work. The central question was whether any proposed evidence or alleged error gave the appeal a real prospect of success.

Application dismissed; permission to appeal refused.

1. Lord Justice Dyson held that the case raised no point of law. It turned on disputed questions of fact. The trial judge had seen and heard the witnesses, preferred the defendant’s evidence, and accepted detailed evidence that the electrical work was sub-standard and unsafe. The claimant identified no error with which the Court of Appeal was likely to interfere.
2. The proposed evidence of Mrs Vidokovic could not have made a material difference. Even if accepted in full, she was not an expert in electrical or plumbing matters, had not carried out a detailed inspection, and could not answer the detailed evidence on which the judge relied.
3. The absence of Mr Phoenix’s evidence could not found a ground of appeal. It was unclear why he had not given evidence. In any event, his proposed evidence was generalised evidence of satisfaction with earlier work and was unlikely to displace the detailed evidence concerning the defects at the property.
4. The factual findings supporting termination of the contract, dismissal of the claim, and the award on the counterclaim disclosed no appealable error. The formal order was that the application be dismissed.

1. Hastings County Court: On 19 December 2000, Judge Coltart dismissed the claimant’s claim and entered judgment for the defendant on her counterclaim in the sum of £3,042.22.
2. Court of Appeal (Civil Division): On 30 August 2001, Lord Justice Dyson refused permission to appeal and dismissed the application: [2001] EWCA Civ 1374.