Barclays Bank Plc v Armstrong

For a second-tier appeal, permission requires an important point of principle or another compelling reason under the Civil Procedure Rules Part 52.13. An application made out of time is assessed by considering the length of the delay, its explanation and the prospects of success, viewed in the round and consistently with the overriding objective. Where the proposed appeal concerns primarily factual disputes, the prospects are very weak and no qualifying legal point or compelling reason is shown, permission should be refused.

The first defendant applied for permission to appeal out of time from Judge Briggs’s order of 28 January 2000. That order had dismissed his appeal against District Judge Traynor’s decision of 4 November 1999, which struck out his defence to the bank’s claim for repayment and/or possession of his home.

The dispute concerned whether the defendant had signed a 1989 side letter and loan agreement, and whether he had the dealings with the bank recorded in its information cards. The central issue before the Court of Appeal was whether the delay should be excused and whether the proposed second-tier appeal satisfied the applicable permission threshold.

Application refused. Permission to appeal out of time was refused. The proceedings were to be regarded as at an end.

1. Approach to delay. The appellant’s notice was served more than three months late. The court considered, in sequence, the length of the delay, the reason for it and the prospects of success. The explanation for the delay was not impressive. The assessment had to be made in the round, with regard to the overriding objective of dealing with cases justly.
2. Second-tier threshold. Under the Civil Procedure Rules Part 52.13, permission could be granted only if there was an important point of principle or another compelling reason.
3. Prospects and issues. The proposed appeal raised primarily factual questions: whether the appellant had signed the side letter and loan agreement, and whether he had the contacts with the bank recorded in its information cards. The lower courts had found that he signed the documents and considered his prospects of defending the claim to be extremely slight. His arguments concerning consistency of his position, the business being in his wife’s name and the absence of a statement from the bank manager were matters that could properly be raised, but they did not establish a qualifying ground for a second-tier appeal.
4. Security documents and evidence. Although the charge was expressed as an all monies charge, the earlier facility letter restricted reliance on it without prior written agreement. The side letter was therefore material. The fact that the county court judge had been misled on that point did not create an important point of principle or compelling reason. Expert evidence challenging the signatures might have altered the assessment, but none had been produced.
5. Conclusion. The combination of significant delay, an inadequate explanation, very weak prospects and the absence of any qualifying legal issue meant that permission could not properly be granted.

• Court of Appeal (Civil Division) — On 15 March 2001, Lord Justice Kennedy refused permission to appeal out of time, applying the second-tier threshold in the Civil Procedure Rules Part 52.13.
• Middlesbrough County Court — On 28 January 2000, Judge Briggs dismissed the appeal from the strike-out decision and refused permission to appeal.
• Hartlepool County Court — On 4 November 1999, District Judge Traynor struck out the first defendant’s defence after finding that he had signed the documents relied on by the bank.