Golding v Clarke & Clarke

Permission to appeal may be refused where proposed new evidence was available at the earlier hearing, could have been produced then, and is unsupported by an adequate explanation for delay. A late challenge to evidence already before the first-instance judge cannot ordinarily be raised for the first time on a further appeal. A Convention argument based on an order made before the Human Rights Act 1998 came into force cannot found a defence in private proceedings. On a second appeal, the applicant must also satisfy the higher hurdle in O.52, r.13. Here, the proposed grounds disclosed no real prospect of success.

Mrs Clarke sought permission to appeal from His Honour Judge Tetlow’s order dated 27 October 1999, which had dismissed her application for permission to appeal against District Judge Brazier’s order of 10 March 1999. That order entered summary judgment for £54,156.86 on a £30,000 loan and struck out the defendants’ counterclaim.

The proposed appeal challenged representations about the turnover of an Irish public house, sought to adduce further correspondence and evidence, and alleged an infringement of Article 6. Mrs Clarke also sought an adjournment pending a legal funding application. The central issues were whether the new material could properly be raised at that stage and whether the Convention argument applied to the earlier order.

Application refused. Lady Justice Arden refused an adjournment sought on the eve of the hearing. The application had been lodged 16 months earlier, and Mrs Clarke had had sufficient time to pursue legal funding. The court also had to consider the interests of both parties in avoiding further delay.

1. The proposed new evidence did not justify permission. It was available, or could have been obtained, for the earlier hearings. No adequate reason was given for its omission, and the material would not have altered the conclusions already reached.
2. A challenge to the claimant’s evidence that the defendants had received the cash-takings list should have been made before the District Judge and could then have been pursued on appeal. It was too late to advance a conflicting factual case at this stage. The proposed evidence about accounting practice was also unsupported, conflicted with the existing material, and would have been irrelevant unless the defendants knew of and relied upon that practice.
3. The Article 6 argument could not found a defence. Section 22(4) of the Human Rights Act 1998 preserves the retrospective application of section 7(1)(b) to proceedings brought by or at the instigation of a public authority, but these were private proceedings. The relevant order was made before the Act came into force on 2 October 2000.
4. This was a second appeal, so the higher hurdle in O.52, r.13 applied. In any event, the proposed grounds disclosed no real prospect of success. Permission was therefore declined.

• Court of Appeal (Civil Division): On 27 March 2001, Lady Justice Arden refused Mrs Clarke’s application for permission to appeal and refused an adjournment.
• Stockport County Court: His Honour Judge Tetlow’s order dated 27 October 1999 dismissed the application for permission to appeal.
• Stockport County Court: District Judge Brazier’s order dated 10 March 1999 entered summary judgment for £54,156.86 and struck out the counterclaim.