Burke & Ors v Giumba & Ors

On an application for permission to appeal, the Court of Appeal may adjourn the application on notice where newly produced documentary evidence could materially undermine the trial judge’s findings and the claim as a whole. The court should not determine the appeal on speculative material. Affected parties must have an opportunity to verify or challenge the evidence. If permission is later granted, the appeal may follow at the renewed hearing.

Mr Giumba applied for permission to appeal orders made by His Honour Judge Cowell in the Central London County Court on 23 April 2001. One order concerned £4,193.81 said to be due on a dishonoured cheque. The applicant produced a document giving the full number of an account into which the sum appeared to have been paid, and asserted that it was a second account held by Mr Derbyshire. If verified, this could challenge evidence relied on below and findings central to the declaration that Mr Karallis owned 35 per cent of the wine-bar shares. A related issue was whether Mr Karallis’s entitlement depended on performance of an agreed obligation.

Application adjourned on notice. Lord Justice Ward adjourned the permission application rather than granting or refusing permission. It was to be listed before two Lords Justices, with the appeal to follow if permission was granted.

1. Fresh documentary evidence may justify adjourning a permission application where, if established, it could undermine material findings of fact and potentially the whole basis of the claim.
2. The document produced by Mr Giumba gave the full number of a Barclaycard Gold account into which the sum of £4,193.81 appeared to have been paid. The account number differed from the Barclaycard Platinum account previously identified in Mr Derbyshire’s name. Mr Giumba asserted that the Gold account was a second account held by Mr Derbyshire.
3. If that assertion were proved, and if Mr Derbyshire’s evidence to the county court were incorrect, the evidence might undermine the claimants’ case and the findings supporting the declaration that Mr Karallis owned 35 per cent of the shareholding.
4. The county court had treated the parties’ obligations as separate. The question whether one obligation was dependent on the other remained for consideration. The judge had also been concerned with credibility, so any material challenge to the evidence could be significant.
5. The suggested effect of the new evidence was presently speculative. The claimants therefore had to be given notice and an opportunity to respond before the application was determined. The court expected, without directing, that Mr Derbyshire would produce his Goldcard statement to confirm or deny that he held the account.

• Court of Appeal (Civil Division): On 12 October 2001, the permission application was adjourned on notice to the claimants and listed before two Lords Justices, with the appeal to follow if permission was granted: [2001] EWCA Civ 1561.
• Central London County Court: His Honour Judge Cowell made orders on 23 April 2001, including an order concerning the sum claimed on a dishonoured cheque and a declaration concerning Mr Karallis’s shareholding.