Yaxley v McGlave

Permission to appeal should be refused where the proposed appeal has no real prospect of success and there is no other compelling reason to grant permission. New factual or credibility points not raised at trial will generally not establish a viable appeal, particularly where the trial judge heard the witnesses and gave careful reasons for the findings. An adjournment to obtain speculative further legal aid may be refused where it would merely delay possession and the proposed appeal has no merit. A stay dependent on permission falls away when permission is refused, although a short extension may be granted to allow practical arrangements for eviction.

The defendant applied for permission to appeal against a judgment of His Honour Judge Oppenheimer in Brentford County Court dated 21 September 2000. The county court had accepted the claimant’s evidence concerning an agreement under which the defendant occupied parts of the property, found that the defendant held an assured tenancy, and concluded that rent arrears entitled the claimant to terminate it.

The defendant sought to argue that the agreement was unworkable or unlawful and complained about the claimant’s evidence and use of an interpreter. He also sought an adjournment to obtain further legal aid and a stay of execution pending appeal. The central issue was whether the proposed grounds disclosed a real prospect of success or another compelling reason for permission.

1. Permission to appeal refused. The application was three days late, but time was extended because the defendant, who was acting in person, had relied on information that he had 28 days to apply.
2. Permission required a real prospect of success or some other compelling reason. The proposed challenge to the agreement had not been raised at trial. The defendant accepted that he had discussed the issue with his solicitors but that it had not been advanced before the court. The proposed general attack on the claimant’s honesty and evidence was likewise not reflected in the county court judgment.
3. The trial judge had heard the witnesses, made the necessary credibility assessments, and given detailed and careful reasons for accepting the claimant’s evidence and rejecting the defendant’s evidence on the agreement. The proposed appeal therefore disclosed no real prospect of success.
4. An adjournment was refused. The prospect of obtaining further legal aid and representation was speculative, the merits had already been assessed, and an adjournment would postpone the claimant’s possession without justification.
5. The requested stay of execution depended in principle on permission being granted and therefore fell away. Nevertheless, a short extension of the stay was granted until 16 November 2001 to allow housing and social services arrangements to be made. There was no order for costs.

• Court of Appeal (Civil Division): On 29 October 2001, Lord Justice Rix refused permission to appeal against the Brentford County Court judgment dated 21 September 2000. A temporary extension of the stay of execution was granted.
• Brentford County Court: His Honour Judge Oppenheimer found that the defendant held an assured tenancy and that rent arrears entitled the claimant to terminate it.