Zazulak (t/a Stefco Precision & General Engineers) v Dickinson & Anor

Permission to appeal requires a ground with a real prospect of success or another compelling reason. An issue expressly conceded or compromised at trial will not ordinarily support an appeal, particularly where the concession explains why the trial judge did not decide it. A mitigation complaint concerning repossessed goods must identify a failure to take reasonable steps to achieve a proper price, supported by particulars and evidence; a sale below an asserted open-market value is insufficient by itself. A later complaint that the judge gave no express reasons is unlikely to justify permission where counsel were invited to identify unresolved matters and raised none.

The claimant renewed an application for permission to appeal after refusal on paper. The underlying county court proceedings had resulted in overall judgment against him after the first respondent succeeded on a counterclaim concerning termination of a lease agreement and repossession of goods.

The renewed application concerned two issues: whether arrears justified termination and repossession, and whether the respondent had failed to mitigate loss by selling the goods for less than their alleged open-market value. The claimant was absent despite notice. The central question was whether either issue had a real prospect of success or otherwise provided a compelling reason for an appeal.

Application dismissed; permission to appeal refused. Lord Justice Mance, sitting alone, proceeded in the applicant’s absence because he had received notice. The applicant retained the usual right under CPR 23.11 to seek relisting in the court’s discretion.

1. The arrears issue provided no realistic ground of appeal. Counsel who had represented the claimant at trial confirmed that it had been conceded that arrears existed, that the lease had been validly terminated, that the first respondent was entitled to repossess the goods, and that the amount due had been agreed as a compromise. The documents and bank statements therefore had not been investigated at trial because those matters had been resolved by agreement. The apparent discrepancy between figures for arrears did not alter the position.

2. The mitigation issue also had no real prospect of success. Although the pleading referred to open-market value, the expert material indicated that the estimated restricted realisation price was the relevant starting point for goods sold following breach and repossession. The former trial counsel recalled that the expert had accepted the actual resale price as reasonable in light of the condition of the goods and market demand. The allegation was also inadequately particularised. It identified no reasonable steps or alternative method of sale which should have been adopted.

3. The complaint that the trial judge had failed expressly to address mitigation was not compelling. Counsel had not raised any omission at trial or after judgment. In particular, when the judge invited counsel to identify any unresolved factual matters necessary for the legal order, neither counsel identified anything further. The circumstances therefore gave no proper basis for a renewed appeal.

There was no real prospect of success on either issue and no other compelling reason justifying permission.

• Court of Appeal (Civil Division): The renewed oral application for permission to appeal was heard after refusal on paper. The applicant was absent despite notice, and permission to appeal was refused.
• Halifax County Court: His Honour Judge Berry had entered overall judgment against the claimant after the first respondent’s counterclaim concerning termination of the lease and repossession of the goods succeeded. No citation for the county court judgment was stated.