Lumley v Robinson

Permission to appeal may be granted where the proposed appeal has a real prospect of success. That threshold may be met by a substantial legal issue even where challenges to factual findings are unlikely to succeed because the first-instance judge saw and heard the witnesses. A potentially surprising order concerning beneficial joint tenancy, mortgage liability and rights of contribution or indemnity can justify permission. Granting permission does not determine the appeal or guarantee success. The court may also consider the ordinary costs risk and the procedural limits governing new evidence.

Mr Robinson, the personal representative of the late Mrs Olga Riddell, applied for permission to appeal and a stay of execution from an order made by Mr Recorder Lancaster in the Newcastle-upon-Tyne County Court on 26 March 2001. The order gave judgment against the estate for £12,600 and declared the estate jointly and severally liable with Mr Lumley for the outstanding mortgage on West Lodge, while dismissing Mr Lumley’s claim under the Inheritance Provision for Family and Dependants Act 1975.

Mr Robinson challenged the acceptance of Mr Lumley’s uncorroborated evidence and argued that the estate should not contribute to mortgage payments for property passing to Mr Lumley by survivorship. The central issue for permission was whether the order raised an arguable legal question with a real prospect of success on appeal.

1. Permission granted. Lord Justice Mummery granted permission to appeal. The only formal order made was that permission to appeal be granted.
2. The proposed challenge to the Recorder’s factual findings had little apparent prospect of success. An appellate court is slow to interfere with a first-instance assessment of credibility because the judge who heard the evidence had the unique advantage of seeing the witness give evidence and forming a view about truthfulness.
3. There was nevertheless a real prospect of success on the broader legal issue. The order appeared surprising because West Lodge had passed to Mr Lumley as surviving beneficial joint tenant, yet the estate remained jointly liable and was required to indemnify him for half the mortgage liability.
4. The court recognised that the position might differ from the ordinary case in which property is devised subject to a mortgage under the Administration of Estates Act 1925, because the property did not form part of the estate. It was arguable that Mr Lumley’s right was to an indemnity out of the property rather than contribution from the estate. The court left the correct legal position open pending full argument.
5. Permission was not a determination of the merits. The appellant was warned that an unsuccessful appeal would ordinarily attract an order to pay the successful respondent’s costs.
6. Any fresh evidence would require an application. The normal rule is that evidence which could have been produced before the lower court by reasonable efforts should not be introduced on appeal. The position may differ for evidence arising or discovered after the hearing which could not reasonably have been obtained earlier.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 805, Lord Justice Mummery granted permission to appeal from the order of Mr Recorder Lancaster. No substantive appeal was determined.
• Newcastle-upon-Tyne County Court: On 26 March 2001, the Recorder ordered the estate to pay £12,600, declared liability for half the outstanding mortgage repayments, dismissed the claim under the Inheritance Provision for Family and Dependants Act 1975, and made costs orders.