Howell (t/a Town Base) v Virani

Permission to appeal should be refused where the proposed appeal has no real prospect of success. A trial judge’s assessment of witness credibility is primarily a matter for that judge. The Court of Appeal will not interfere where the judgment is careful, reasoned and supported by the evidence, and no material error or procedural unfairness is shown. An issue raised in a further pleading and plainly contested at trial may be determined by the trial judge, even if the opposing party did not formally plead a response. Mere disagreement with the judge’s factual assessment is insufficient to justify appellate intervention.

Mr Howell, an estate agent, sued Miss Virani in connection with money received from a tenant of her parents’ flat. He claimed damages for alleged misconduct and an additional commission said to be payable after the first seven months of the tenancy. Miss Virani denied the claims and counterclaimed for money retained by Mr Howell.

Mr Recorder Hone QC dismissed Mr Howell’s claims, found that no agreement for the additional commission existed, and gave judgment for Miss Virani on her counterclaim. Permission to appeal was refused below. Mr Howell applied to the Court of Appeal, alleging procedural unfairness, improper admission of evidence, erroneous credibility findings and failure to deal with proposed witnesses. The central issue was whether any proposed ground disclosed a realistic basis for appellate intervention.

1. Application dismissed. Lord Justice Jonathan Parker held that the proposed appeal had no real prospect of success.
2. The trial judge had delivered a careful, thorough and reasoned judgment. Nothing in the material suggested that he had closed his mind to Mr Howell’s evidence or had been improperly antagonistic. The judge’s initial concern about bank statements was resolved after considering Mr Howell’s explanation, so it provided no basis for appellate intervention.
3. The relative credibility of Mr Howell and Miss Virani was pre-eminently a matter for the trial judge. The Court of Appeal had no proper basis to reassess that conclusion merely because Mr Howell disagreed with the judge’s view of the evidence.
4. The alleged entitlement to further fees had been raised by Mr Howell in a further pleading and was plainly contested at trial. The judge was fully entitled to determine the issue in the manner adopted. His finding that no agreement for the additional fee existed was a finding of fact which could not realistically be challenged on appeal.
5. The complaints concerning the late production of faxes, the non-attendance of anticipated witnesses, a proposed adjournment and expert evidence did not disclose any material unfairness or other ground with a realistic prospect of success. The application for permission to appeal was therefore dismissed. There was no order for costs.

• Court of Appeal (Civil Division): On 5 October 2001, Lord Justice Jonathan Parker dismissed the application for permission to appeal. [2001] EWCA Civ 1515
• Central London County Court: On 5 June 2001, Mr Recorder Hone QC dismissed Mr Howell’s claims and entered judgment for Miss Virani on her counterclaim for £4,297 plus interest. Permission to appeal was refused.