Mustafa & Anor v Hussein & Anor

Permission to appeal should be refused where the proposed appeal has no realistic prospect of success on the material available. An appeal is not an opportunity to obtain a further trial by introducing allegations or evidence that could have been put before the trial judge. Unsupported allegations challenging factual findings do not justify reopening the case, particularly where the trial judge has made adverse findings about the applicant’s conduct and credibility. A substantial delay, without an adequate explanation for failing to advance the material at trial, reinforces that conclusion.

The claim concerned the beneficial ownership of 33 Belmont Hill, Lewisham. The claimants asserted that the property was held in equal third shares, while the defendants initially contended for unequal shares following the death of one registered owner.

The deputy High Court judge concluded that an undated letter, signed by the four registered proprietors after the solicitors’ enquiry, established equal beneficial shares. Following later transfers, he declared that the property was held for the two claimants and the second defendant in shares of one quarter, one quarter and one half.

The second defendant applied, approximately 15 months out of time, for permission to appeal. He sought to challenge the authorship and reliability of the letter and to introduce further allegations and material. The central issue was whether the proposed appeal had any prospect of success on the material placed before the Court of Appeal.

1. Application refused. Lord Justice Chadwick was not persuaded that the proposed appeal had any prospect of success on the material made available.
2. The only apparent basis for challenging the deputy judge’s conclusion was to dispute whether the undated letter reflected the signatories’ intentions when it was signed. The applicant did not identify any proper challenge to the evidence on which the judge relied, including the evidence that the letter had been explained to the relevant signatories.
3. The appellant’s notice was filed about 15 months after the order. The explanation was that further documents and a witness statement had only recently been located or obtained. There was no satisfactory explanation why the material could not have been obtained and presented at trial.
4. The proposed new contention that the letter had been written by another person could have been put to that person during the trial and, if necessary, supported by expert handwriting evidence. It was unsupported when advanced on the application.
5. An appellant who has failed to establish a case at trial cannot use the appellate process to secure a further trial by making different allegations or substituting new material for the case previously advanced. That approach would be inconsistent with the sensible conduct and finality of litigation.
6. The application for permission to appeal was therefore refused.

• High Court of Justice, Chancery Division: On 28 January 2000, Mr Peter Smith QC, sitting as a deputy High Court judge, declared that the property was held for the two claimants and the second defendant in shares of one quarter, one quarter and one half.
• Court of Appeal (Civil Division): Lord Justice Chadwick refused the second defendant’s application for permission to appeal, filed approximately 15 months out of time, in [2001] EWCA Civ 1593.