Bhangu & Anor v Jagdev & Ors

On a renewed application for permission to appeal, the court may adjourn the application for an on-notice hearing where there is a substantial concern that the first-instance judgment does not adequately explain a critical finding on disputed evidence. A general statement that one witness is preferred, together with a reference to documentation, may be insufficient where the finding is central and the reasons are not otherwise apparent.

The court may direct that the appeal follow immediately if permission is granted, while recognising the applicant’s potential costs risk.

The claimants agreed informally with the first two defendants to acquire a shoe-shop lease and stock. The lease assignment failed because the landlords did not consent, and the unwritten agreement was void. The claim was therefore treated as one in restitution.

At trial, Her Honour Judge Bevington found that the claimants had made several payments, including payment for stock, sums towards the lease price and a further £10,000. The first defendant challenged those factual findings, arguing that the judge had not adequately explained why the claimants’ evidence was preferred to his. On the renewed application, the central issue was whether permission should be finally determined immediately or adjourned for an on-notice hearing.

1. Application adjourned. Lord Justice Rix adjourned the renewed, without-notice application for permission to appeal to an on-notice hearing before a court of at least two judges. If permission were granted, the appeal was to follow immediately.
2. The proposed appeal concerned the judge’s findings that three disputed payments had been made: nearly £22,000 for stock, approximately £27,700 paid through the solicitor, and a further £10,000. The challenge was factual and focused on the competing credibility of the claimants and Mr Jagdev.
3. The first-instance judgment stated that the judge preferred the claimants’ evidence and had weighed the credibility arguments, with reference to documentation. On the papers before the Court of Appeal, there were nevertheless possible reasons for preferring the claimants’ account, including the greater consistency of their pleadings, witness statements and apparent oral evidence, and weaknesses in Mr Jagdev’s evidence.
4. Those reasons were not expressly set out in the judgment. Lord Justice Rix considered that there was no realistic prospect of success apparent on the material before him, but remained concerned that the reasoning did not sufficiently explain the critical evidential finding. An on-notice hearing was regarded as the fairest course, allowing a court of at least two judges to decide permission with the benefit of fuller consideration.
5. The proposed appeal concerning the legal basis of the restitutionary claim had been abandoned. The order dealt with the further application and any appeal costs.

• Central London County Court: Her Honour Judge Bevington determined the restitutionary claim and made factual findings that the claimants had made the disputed payments.
• Court of Appeal (Civil Division): On the renewed application, Lord Justice Rix adjourned the application for permission to appeal to an on-notice hearing before at least two judges, with any appeal to follow immediately if permission was granted. Costs were directed to be dealt with in the further application and appeal.