Knight & Anor v Fazelynia & Ors

Permission to appeal should not be refused merely because the trial judge’s decision depended substantially on oral evidence, although that creates a serious appellate difficulty. Permission is appropriate where the proposed grounds are properly arguable and have a realistic prospect of success. This may include an arguable failure to identify who commissioned work or whether it was undertaken gratuitously. A related issue may also proceed where its determination could be affected by the first ground. An application to rely on documents excluded at trial should be made to the full appeal court on notice, with a focused bundle explaining their relevance. Granting permission does not determine the merits.

Mr and Mrs Knight claimed payment for work allegedly undertaken for a charity event and at Great Marlborough Street, Manchester. His Honour Judge Tetlow dismissed their claims against the third and fourth defendants, relying substantially on competing oral evidence. Claims against the first and second defendants had previously been compromised for £5,000. At the permission hearing, the claimants argued that the work was not gratuitous, was of value, and had been undertaken for one of the defendant companies. They also sought to rely on documents not admitted at trial. The central issues were whether the proposed grounds were sufficiently arguable and whether permission should extend to both operations.

Permission to appeal granted. The appeal was directed to be heard by two Lords Justices. The court did not determine the merits of any issue.

1. Charity-event work. Although the trial judge’s credibility findings presented substantial difficulties, the claimants should be permitted to argue that the work was not undertaken voluntarily or gratuitously and was not worthless. The judge appeared arguably to have left unclear who requested the work and what was requested. The treatment of Mr Zadan’s witness statement also gave rise to an arguable complaint, because the judge had initially indicated that he would not rely on it as hearsay but later appeared to rely heavily upon it. Recovery exceeding £500 appeared unrealistic, but the argument should not be shut out.
2. Great Marlborough Street work. Permission was also granted in relation to this operation. The trial judge had accepted that approximately 41 hours of work were undertaken and had indicated that £615 might be appropriate if his primary conclusion were wrong. The first ground could affect the approach to the second.
3. Further documents. The court did not decide whether the additional documents should be admitted. That application was to be made to the full court on notice to the respondents, supported by a slim bundle and a short explanation of relevance and admissibility.
4. Settlement. The compromise with the first and second defendants was regarded as applying to disputes between the claimants and those defendants concerning the two operations, but not as extending to the third and fourth defendants. This was not finally determined beyond the permission application.

The court expressed serious concern about costs and suggested mediation and assistance from the pro bono unit.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 1799, Lord Justice Clarke granted permission to appeal and directed that the appeal be heard by two Lords Justices.
2. Manchester County Court: His Honour Judge Tetlow made an order on 12 June 2001 dismissing the claim against the third and fourth defendants.