Gregory-Davies v Bradley & Ors

On a renewed application for permission to appeal, the Court of Appeal may consider the proposed appeal in its full procedural and factual context. The court should not interfere with an experienced first-instance assessment of whether litigation should proceed unless the decision is clearly wrong. A judge’s assessment of whether alleged support amounts to maintenance, or a substantial contribution towards reasonable needs, is a question of fact and degree. Such an assessment is not binding on the appellate court but will not be lightly disturbed.

The claimant sought provision from the estate of Lionel Bradley under the Inheritance (Provision for Family and Dependants) Act 1965. Johnson J struck out the claim, concluding that the claimant had ceased to be maintained by the deceased and that the evidence did not justify the proceedings continuing.

Ward LJ refused permission on paper. The claimant renewed the application, but the oral hearing was substantially delayed between 1997 and 2000, without a satisfactory explanation being placed before the court. The central issue was whether Johnson J had applied too low a threshold and had been clearly wrong to conclude that the claim had no sufficient triable basis.

1. Renewed application dismissed unanimously. The claimant had to demonstrate that Johnson J was clearly wrong, particularly in light of the four-year delay since the first-instance decision and the respondents’ reasonable belief that the litigation had ended.
2. Per Lord Justice Thorpe, the court had to assess the application in the round. Although individual criticisms of the judge’s treatment of the evidence might have some force, Johnson J had made an experienced assessment of whether it was sensible and just for the litigation to proceed. That assessment was valid and would not have been disturbed had permission been granted.
3. Per Sir Martin Nourse, the judge’s conclusion involved a question of fact and degree. Even accepting the claimant’s evidence and the builders’ evidence about proposed repairs, the deceased was not making a substantial contribution towards her reasonable needs and was not maintaining her. The judge’s view was not binding on the Court of Appeal, but it was not lightly to be interfered with.
4. Lord Justice Brooke agreed with Lord Justice Thorpe. The application was refused, with costs against the claimant, subject to Legal Aid assessment.

• Court of Appeal (Civil Division): Ward LJ refused permission to appeal on paper in July 1997. The renewed application was dismissed unanimously on 13 March 2001.
• High Court of Justice, Family Division: Johnson J struck out the claim following a hearing on 26 February 1997.