Kutay v Jooyandeh

An appellate court should be slow to interfere with findings based on the trial judge’s assessment of witnesses whom he saw and heard. Permission should be refused where the proposed challenge offers no real prospect of showing that the assessment was wrong. Further evidence will not justify an appeal where, even if admitted, it could not have affected the outcome, particularly where it may have been available at trial. Procedural defects in witness statements do not automatically require exclusion: a trial judge may permit evidence in the interests of a fair trial where the defects cause no prejudice. There is no tit-for-tat principle requiring equivalent procedural treatment. Treating witness statements as evidence-in-chief and commencing cross-examination immediately are ordinarily case-management steps and do not establish unfairness without evidence of actual procedural injustice.

The claimant sought £29,000 said to be outstanding under two promissory notes totalling £52,000 which secured a loan. The defendant maintained that he had repaid the balance in cash or kind. The trial judge preferred the defendant’s account, relying substantially on evidence from the defendant’s former wife’s aunt, and dismissed the claim.

The claimant renewed his application for permission to appeal and sought to adduce documents obtained after trial. He alleged procedural irregularities, challenged the conduct of the hearing and disputed the judge’s assessment of the defendant’s witnesses. The documents concerned the defendant’s brother, travel, finances and the former wife’s address. The central issue was whether those matters disclosed a real prospect that the trial decision was wrong.

Disposition. The renewed application for permission to appeal was refused. There was no order for costs.

1. Fresh evidence. The proposed documents did not warrant permission. Even if admitted, they would not have affected the outcome. Some or all of the material also appeared to have been available at trial. The electoral-register evidence did not undermine the witness’s account: the alleged cash payments covered an earlier period, while the later conversation was said to have occurred after the former wife had separated from the defendant.
2. Procedural irregularity. The trial judge had a discretion to allow the defendant’s witnesses to give evidence despite defects in their statements, including missing addresses, statements of truth and dates. The defects could not have prejudiced the claimant, and the exercise of the discretion was consistent with securing a fair trial. No tit-for-tat principle required the judge to exclude the evidence because the defendant had previously failed to comply with court orders.
3. Conduct of the hearing. There was no evidence that the claimant had been treated unfairly because his witness statement was taken as evidence-in-chief, cross-examination began immediately or the judge asked him to speak up. Treating witness statements as evidence-in-chief is an ordinary means of expediting a trial.
4. Assessment of evidence. The result depended on the trial judge’s assessment of the witnesses whom he had seen and heard. The criticisms advanced did not disclose any real prospect that the appellate court would conclude that assessment was wrong. Permission was therefore refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused; no order for costs.
• Stockport County Court, before His Honour Judge Caulfield: claim for £29,000 dismissed.