Thomas v Hammersmith & Fulham London Borough Council

Permission to appeal requires a real prospect of success or some other compelling reason. Where permission depends on fresh evidence, the court must consider whether the evidence would be admitted and, if admitted, whether it is credible and sufficiently effective to make a new trial necessary. Evidence available, or potentially available, at trial carries little weight unless its absence is satisfactorily explained. The appellate court must also assess whether the new material could realistically displace the trial judge’s factual conclusion. The application was refused because the evidence was available or potentially available before trial, the explanation for its late production was inadequate, and it did not create a real prospect of a successful appeal or another compelling reason.

The claimant brought a personal injury claim against his former employer after falling from steps while carrying out work. The central issue at trial was whether the collapsed steps had been supplied by the council or had been provided by the claimant himself. His Honour Judge Cowell preferred the manager’s evidence, supported by the contemporaneous accident report, and dismissed the claim.

The claimant applied to the Court of Appeal for permission to appeal and relied on photographs, statements from colleagues and a tenant, and a work book. The central question was whether the fresh material could be admitted and, if so, whether it justified ordering a new trial.

1. Disposition. Lord Justice Rix refused permission to appeal. The formal order was that the application for permission to appeal be refused.
2. Permission threshold. The claimant had to show a real prospect of success on appeal or some other compelling reason for permission to be granted.
3. Fresh evidence. Where the application relies on new evidence, the court must assess whether the evidence would be admitted and, if admitted, whether it is credible and effective enough to make a new trial necessary. The availability of the material at trial, or the possibility of obtaining it before trial, and the explanation for its late production are important considerations.
4. Application. The photographs and work book were available before trial. Statements from the colleague and tenant could potentially have been obtained during the long period before trial, when the claimant had legal representation. The claimant’s explanations did not provide a safe account of why the evidence had not been produced earlier. The new material had to be weighed against the manager’s evidence and the contemporaneous accident report, which the trial judge had accepted. It did not create a real prospect that the Court of Appeal would order a new trial, nor did it disclose another compelling reason for an appeal.

1. West London County Court: His Honour Judge Cowell dismissed the claimant’s personal injury claim after deciding that the collapsed steps had not been shown to be council-issued equipment.
2. Court of Appeal (Civil Division): Lord Justice Rix refused permission to appeal in [2001] EWCA Civ 1618.