Turp & Anor v Mills

Permission to appeal is granted only where the proposed appeal has a real prospect of success. An appellate court will rarely interfere with trial findings of fact based on witness credibility, particularly where doing so would require a retrial rather than a review.

Alleged irregularities concerning a later deed do not provide a defence to contractual claims founded on an earlier agreement where the alleged irregularities do not affect the basic contractual obligation. Alleged fraud or impropriety in obtaining legal aid is ordinarily a matter for the appropriate authorities and does not, without more, affect the correctness of the judgment.

The claimants sued the defendant in Kingston County Court for damages arising from his failure to complete the construction of a house by the agreed completion date and for defects in the construction. His Honour Judge Morgan awarded the claimants £25,382.22 including interest, dismissed the counterclaim and ordered the defendant to pay costs.

The defendant sought permission to appeal. He relied on alleged backdating of the deed of transfer, alleged dishonesty in obtaining legal aid, and alleged perversity in the judge’s factual findings. The central issue was whether those grounds gave the proposed appeal a real prospect of success.

1. Application refused. The proposed appeal had no real prospect of success.
2. Permission to appeal required a real prospect of success. Where the challenge concerned findings of fact, it was particularly difficult to satisfy that test if the findings depended on the trial judge’s assessment of witness credibility.
3. The alleged backdating of the deed of transfer did not provide a defence. The claim was founded on the prior contract, pleaded as a written agreement dated 11 July 1996 under which the defendant agreed to complete the house by 26 July 1996. The alleged irregularities in the later transfer did not affect the defendant’s basic contractual obligations to complete the property by the agreed date and to construct it properly.
4. The principle concerning material alteration of a deed, cited from Ellesmere Brewery Co v Cooper [1896] 1 QB 75, did not assist the defendant on the pleaded contractual basis of the claim. The argument was therefore not applied to defeat the claim.
5. Alleged irregularities in the claimants’ acquisition of legal aid did not affect the correctness of the judgment. Any false statement could be reported to the appropriate authorities.
6. The trial judge was entitled to reach his conclusions on delay and construction defects on the evidence, including expert evidence, even though he rejected some of the claimants’ evidence as unreliable. The Court of Appeal’s role under the Civil Procedure Rules was generally to review the decision below, not conduct a retrial.
7. The application for permission to appeal was refused. There was no order for costs.

• Kingston County Court: His Honour Judge Morgan awarded damages of £25,382.22 including interest, dismissed the counterclaim and ordered the defendant to pay costs. Permission to appeal was refused.
• Court of Appeal (Civil Division): Permission to appeal was refused.