Fuller v Strum

Permission to appeal should be granted where the proposed appeal is not hopeless, although permission does not indicate that the appeal has substantial prospects of success. The appellate court should recognise that a trial judge who saw and heard the witnesses is generally best placed to assess disputed oral evidence. Delay, expense and the disproportion between costs and the sums at stake are relevant considerations, but they do not alone justify refusing permission where an arguable issue exists.

The claimant sought permission to appeal against an order made after a probate trial. The deputy High Court judge admitted only a £6,000 legacy under the disputed will, having rejected the allegation of forgery but finding that the claimant had not proved knowledge and approval of most of the will’s contents.

The claimant also sought an extension of time, a stay of execution and permission to adduce further evidence, particularly concerning the value of the estate. The Court of Appeal considered whether the proposed appeal was hopeless and how the related procedural applications should be dealt with.

1. Permission to appeal. The application was allowed. The court’s duty was to grant permission unless the proposed appeal was hopeless. The appeal was not completely hopeless, although permission was granted only by a narrow margin and should not be taken as encouragement that the appeal was likely to succeed.
2. The trial judge had heard the oral evidence and was therefore in a strong position to assess credibility. His adverse findings concerning the claimant and a witness, together with his finding that forgery had not been proved, meant that the claimant faced a steep obstacle on appeal. Nevertheless, arguable complaints had been raised about the weight given to parts of the evidence, the unusual result of admitting only one legacy, and the possible significance of the estate’s true value.
3. Extension of time. The delay was short and explained. The extension was granted.
4. Further evidence. Applications to adduce further evidence were adjourned to the appeal hearing. The court indicated that evidence concerning the value of the estate might properly be admitted, but that other evidence would face serious difficulty if it ought to have been called at trial.
5. Stay. A provisional stay of execution was granted, preventing a grant of letters of administration with the will annexed, with liberty to the defendant to apply on notice to lift the stay.

• Court of Appeal (Civil Division): Permission to appeal was granted against the order of Mr Jules Sher QC, sitting as a Deputy Judge of the Chancery Division, dated 20 December 2000. The extension-of-time application and provisional stay were granted, and the further-evidence application was adjourned to the appeal hearing.