United Building and Plumbing Contractors v Kajla

An appellate court should be slow to interfere with findings of fact based on conflicting witness evidence where the trial judge identified the evidence, assessed credibility, gave reasons, and was not shown to have misdirected himself. Permission to appeal may nevertheless warrant renewal where the first-instance decision relied on evidence from a meeting arguably conducted on a without prejudice basis, and the admissibility issue was not raised, particularly where the applicant acted in person.

A building contractor obtained judgment in the Derby County Court for £4,261 against a property owner after disputes concerning the fixed contract price, additional works, and defective or incomplete work. The owner sought permission to appeal findings principally based on conflicting oral evidence. Lord Justice Henry considered that the trial judge had given adequate reasons and that evidence supported the findings, but identified an unargued issue concerning evidence of a settlement meeting in September 2000. The trial judge had relied on that evidence, including an alleged settlement offer and an alleged admission that additional works had been requested. The central issue was whether the permission application should be renewed so that the possible without prejudice objection could be considered.

1. Permission application: The short extension of time was granted. The application for permission to appeal was adjourned for renewal before a full court consisting of two members.
2. Findings of fact: The proposed appeal concerned whether additional works were requested, whether they fell within the fixed-price contract, their reasonable value, and the deduction for defective or incomplete work. The trial judge preferred the applicant’s evidence on one issue and the contractor’s evidence on the other three. He identified the evidence and made clear findings. There was evidence on which those findings could have been reached, and nothing showed that he had misdirected himself. Permission therefore appeared difficult to obtain on those issues.
3. Unresolved evidential issue: The trial judge relied on evidence about a meeting intended to resolve the dispute. The accepted evidence was that the applicant offered £10,000 in full settlement and admitted requesting additional works. The applicant had not objected to that evidence. Had objection been taken, it might have been excluded under the ordinary without prejudice rules. Its possible inadmissibility was an unexplored issue that deserved consideration because it had influenced the decision.
4. Practical directions: The applicant was a litigant in person and said he could not afford representation. The court hoped that the Citizens Advice Bureau would assist at the renewed hearing. The respondent was to be notified and invited to attend. Copies of the judgment were to be supplied to both parties at public expense.

• Court of Appeal (Civil Division): On an application arising from the order of His Honour Judge G C Styler dated 22 June 2001 in the Derby County Court, a single Lord Justice granted a short extension of time and adjourned the application for permission to appeal for renewal before a two-member full court. The judgment is reported at [2001] EWCA Civ 1740.