Carnell v Middleton & Anor

Permission to appeal should be refused where a full review shows no arguable basis for reversing first-instance findings of fact. In particular, the application must disclose an arguable case that the findings were perverse, affected by procedural irregularity, or against the weight of the evidence. A renewed application may be determined on the papers even if the applicant does not attend. If the applicant can explain the absence, the application may be renewed again.

The claimant brought proceedings concerning building works at the first defendant’s house, occupied by both defendants. The issues were whether the contract was made with the claimant or with a partnership, whether the dispute had been compromised, and, if necessary, whether the defendants had a counterclaim.

The county court judge found that the contract was with the partnership and alternatively that a compromise had been reached. He therefore did not determine the counterclaim and refused permission to appeal. The claimant’s application for permission was refused on paper and renewed. His solicitors had ceased to act, and neither he nor a representative attended the renewed hearing. The central issue was whether the papers disclosed an arguable basis for interfering with the factual findings.

1. Application refused. Waller LJ had reviewed the papers fully and remained satisfied that there was no basis on which it was arguable that the Court of Appeal should reverse the county court judge’s findings on either of the two issues.
2. The relevant objections were whether the findings were arguably perverse, affected by procedural irregularity, or against the weight of the evidence. None of those grounds was arguably established. The application therefore did not meet the threshold for permission to appeal.
3. The claimant’s absence did not prevent determination of the renewed application. The court had considered the papers and directed that the judgment be sent to him. If he could provide a reason for not attending, he would be entitled to renew the application before Waller LJ, although the court gave no encouragement to do so in view of the merits.
4. The application for permission to appeal was refused. A transcript was to be provided to the claimant at public expense.

• Southampton County Court: On 12 July 2001, His Honour Judge Anthony Thompson QC found that the contract was between the partnership C’n’G and the defendants. Alternatively, he found that the dispute had been compromised. The counterclaim was not determined, and permission to appeal was refused.
• Court of Appeal (Civil Division): Waller LJ refused permission on paper. On renewal, after reviewing the papers, he again refused permission. Neither the claimant nor a representative attended the hearing.