Yasseen & Ors v HSBC Bank Plc

Permission to appeal should be refused where the proposed appeal has no realistic prospect of success and no other compelling reason warrants permission. Fresh evidence should not be admitted where it could have been produced at trial and does not address the critical issue or show a likely material difference.

On a permission application, an appellate court will not reopen a trial judge’s assessment of witnesses and contemporaneous documents merely because a party identifies peripheral discrepancies. Complaints about wider conduct are immaterial unless they establish a relevant contractual or tortious obligation. A judge’s previous representation of banks, including the defendant, does not itself establish apparent bias.

Mr and Mrs Yasseen and Sunglobe Developments Ltd claimed against HSBC Bank Plc in contract and tort concerning the proposed purchase and development of land in 1988. They alleged that the bank had undertaken to advise them and to provide the development finance required for the project.

After a four-day trial, His Honour Judge Chambers QC preferred the evidence of the bank’s account manager and relied on the bank’s contemporaneous records. The claimants sought permission to appeal and permission to introduce further documents, alleging factual error, fabricated records and judicial bias.

The Court of Appeal had to determine whether the proposed appeal had a realistic prospect of success or another compelling justification, and whether the further evidence should be admitted.

1. Applications dismissed. Permission to appeal and permission to admit further evidence were refused because the proposed appeal had no realistic prospect of success and there was no other compelling reason to grant permission.
2. The additional documents did not justify admission. Some had already been available at trial, and there was no reason why the remainder could not have been produced then. The documents concerned minor discrepancies or later events, including matters arising eight or nine years after the critical events in 1987 and 1988. They did not address the central issue of what advice or undertaking the bank had given and were not likely to make a material difference to the result.
3. The trial judge had heard the crucial witnesses over four days. He accepted that both were honest but preferred the bank manager’s evidence because of his care, contemporary notes and the claimant’s material error about the history. The alleged discrepancies in the bank’s records did not provide a realistic basis for reopening those factual findings.
4. The alleged contractual undertaking was nowhere recorded in writing and was inconsistent with the bank’s internal records. The documents provided no support for the tort claim. Complaints about the bank’s later withdrawal of support and dealings with the claimants’ assets were largely irrelevant without establishing a relevant contractual or tortious obligation.
5. The suggestion of apparent bias based on the judge’s previous representation of major banks, including the defendant, disclosed no reasonable basis for concluding that there was a danger of bias.

• Court of Appeal (Civil Division): Lord Justice Rix dismissed the applications for permission to appeal and to admit new evidence in [2001] EWCA Civ 1487.
• High Court of Justice, Queen’s Bench Division, Cardiff District Registry Mercantile Court: His Honour Judge Chambers QC had determined the underlying claim. No citation for that judgment was stated in the judgment under review.