Sabahlar v Mehana & Anor

Permission to appeal should be refused where the lower court’s construction of an earlier order was properly open on the evidence, its discretionary reasoning disclosed no flaw, and later events did not undermine the decision when made. Potentially inaccurate or misleading information will not necessarily justify an appeal where independent evidence supports the material finding. A claim for interest or compensation arising from delayed completion is ordinarily a matter for the trial court, absent agreement, rather than a basis for admitting an appeal without an arguable error.

This was a renewed application by Bechir Mehana for permission to appeal from an order of Kirkwood J made on 22 August 2001. The order confirmed that the proper implementation of an ancillary relief order made by Connell J, and subsequently slightly altered by Judge Sleeman, permitted the sale of the former matrimonial home to Mr and Mrs MacCuish for £265,000.

The applicant alleged that the judge had been misled about the purchasers’ ability to exchange and complete. He also challenged the postponement of completion from 16 November 2001 to 16 January 2002, which benefited the petitioner. The central issue was whether the material disclosed an arguable basis for an appeal to the full court.

1. Renewed application refused. The order of Kirkwood J was fully reasoned, and no flaw in the judgment as delivered had been shown.
2. The judge’s construction of Connell J’s prior order was correct. On the evidence before him, he was entitled to conclude that the purchasers were in a financial position to exchange and complete within a reasonable time. If the judge had exercised a discretion, his reasoning was not open to criticism.
3. Information supplied by the estate agent may technically have been inaccurate or misleading because the purchasers’ London residence had not been shown to have been sold. That did not justify permission to appeal. Other evidence supported the conclusion that the purchasers could proceed, including the fact that they had exchanged contracts, may have obtained bridging finance, and appeared willing and able to complete on the original date.
4. The order for sale gave the petitioner’s solicitors conduct and contained no express prohibition on postponing completion for her convenience. The applicant might have a claim for interest or other compensation for the resulting eight-week delay. Without agreement, however, that issue could be determined only by the Family Division as the trial court.
5. Subsequent events did not demonstrate an error in the judgment made on 22 August 2001. Nothing in the material produced justified admitting the matter for appeal by the full court.

• Court of Appeal (Civil Division): On 15 November 2001, Lord Justice Thorpe refused the renewed application for permission to appeal.
• High Court of Justice, Principal Registry of the Family Division: Kirkwood J made an order on 22 August 2001 confirming that the sale of the former matrimonial home could proceed, following the ancillary relief order of Connell J as slightly altered by Judge Sleeman.