Aylwen v Taylor Joynson Garrett (A Firm)

On a second appeal, permission is available only where the appeal raises an important point of principle or practice, or there is another compelling reason for it to be heard. A difference between earlier judicial conclusions may support permission, although it is not a universal rule. Permission is also appropriate where alleged loss raises a fact-sensitive question of causation in a peripheral area of damages law, and fresh evidence could give the claim a reasonable prospect of success. The admissibility of fresh evidence may be left to the full court. Fairness and proportionality may justify allowing the respondent to seek permission to adduce evidence addressing the same issue.

Mrs Aylwen applied for permission to bring a second appeal from summary judgment granted by Mr Justice Lloyd in the Chancery Division on 20 December 2000. The judgment had followed an earlier decision by Deputy Master Weir on 17 August 2000, who had refused the defendants’ summary judgment application and given case-management directions.

The claim alleged that the defendants’ negligence caused loss connected with the loss of a property, alternative accommodation and United States taxation consequences. The proposed appeal raised causation, the effect of fresh evidence and the application of the second-appeal permission threshold.

Permission to appeal was granted. The operative parts of the order below were stayed. The application to adduce fresh evidence was adjourned to the full court, and the respondents were given liberty to seek permission to appeal against the refusal of their own fresh-evidence application.

1. Lord Justice May held that this was a second appeal governed by Access to Justice Act 1999, section 55, and Civil Procedure Rules 1998, rule 52.13. Permission required an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear the appeal.
2. The fact that the Deputy Master and Lloyd J had reached different conclusions contributed to the decision to grant permission, although Lord Justice May emphasised that this was not a principle applicable in every case. The late deployment of the successful causation argument, and the claimant’s limited opportunity to meet it evidentially, also carried weight.
3. The alleged loss concerned an area of damages law whose peripheral applications were not straightforward. The question whether the alleged negligence caused the claimed losses was fact-sensitive. If the fresh evidence were admitted and accepted, the United States taxation claim had at least a reasonable prospect of success, and the remaining evidence raised an arguable case that some property-related loss might be proved.
4. The court did not determine the admissibility of the fresh evidence at this stage. Lord Justice May considered it fair and proportionate that the respondents should have an opportunity to seek permission to rely on their own evidence concerning Mrs Aylwen’s alleged knowledge of the possession proceedings. That application was to be listed with the appeal and the claimant’s fresh-evidence application. Lord Justice Dyson agreed.

The costs of the application were left to the discretion of the court hearing the appeal.

• Court of Appeal (Civil Division): On 21 February 2001, granted permission for a second appeal, stayed the operative parts of the order below and gave liberty to the respondents to seek permission to rely on further evidence.
• High Court (Chancery Division): On 20 December 2000, Mr Justice Lloyd granted the defendants summary judgment under Part 24 and awarded costs.
• Deputy Master Weir: On 17 August 2000, dismissed the defendants’ summary judgment application, gave case-management directions and granted permission to appeal to the judge.