Zazulak v JG Dickenson & Anor

Permission to appeal should be refused where the proposed appeal has no realistic prospect of success. A renewed application cannot be used to reopen an issue already decided at an earlier permission hearing where the court has no jurisdiction to reconsider it. Clear concessions made at trial, together with evidence showing that an allegation is unsustainable, may justify concluding that an appeal has no realistic prospect of success.

The applicant sought permission to appeal from a decision of Halifax County Court, where His Honour Judge Barry had determined a dispute concerning leased goods. The Court of Appeal had already considered an application for permission, including the value of the goods, the defendants’ entitlement to terminate the leasing agreement and repossess the goods, and an allegation that they had failed to mitigate loss by selling the goods at an undervalue.

The applicant sought an adjournment to produce further material. The central issues were whether the earlier decision could be reopened and whether the proposed appeal had any realistic prospect of success.

1. Application refused. Lord Justice Clarke concluded that the proposed appeal had no realistic prospect of success. Lord Justice Mance agreed.
2. The earlier permission hearing had finally resolved the issue concerning the value of the disputed items. The documents showed amounts far below the threshold relied on by the applicant. The court therefore had no jurisdiction to reopen that issue through a further adjournment.
3. The material supplied by the applicant’s trial counsel established that it had been conceded at trial that arrears entitled the defendants to treat the leasing agreement as terminated and to repossess the chattels. That issue provided no realistic basis for an appeal.
4. The allegation of failure to mitigate by selling the leased goods at an undervalue was unsustainable in light of the evidence. The evidence supported a reasonable resale value of £2,350 including VAT.
5. The applicant was entitled to renew the application, but there was no useful purpose in adjourning it. Permission to appeal was refused.

• Court of Appeal (Civil Division): An earlier application for permission to appeal was considered by Lord Justice Mance on 27 April 2001. Further information was considered on paper on 11 July 2001, after which permission was refused, subject to the applicant’s right to renew the application.
• Court of Appeal (Civil Division): The renewed application and request for an adjournment were refused. Lord Justice Clarke gave judgment and Lord Justice Mance agreed.
• Halifax County Court: The application arose from a decision of His Honour Judge Barry. No citation for the county court decision is stated in the judgment.