Commissioners of Customs & Excise v D'Souza & Ors

On a second appeal, permission requires an important point of principle or practice, or another compelling reason. That threshold is not met merely because a judge assessed affidavit and documentary evidence on a Civil Procedure Rules 1998 Part 24 application. The judge may scrutinise late, unexplained evidence to decide whether it provides a genuine defence and need not accept opposing evidence at face value. A limited arguable defence to particular transactions does not undermine an otherwise overwhelming case. The renewed application for permission was therefore refused.

The Commissioners alleged that property and money held in the second defendant’s name were proceeds of his son’s fraud. Master Rose entered judgment for the Commissioners against the second defendants. Turner J allowed the appeal only in part, permitting a defence to part of the claim. The second defendant renewed his application for permission to bring a second appeal, arguing that Turner J had conducted an impermissible mini-trial and improperly assessed the credibility of affidavit evidence. The Court of Appeal considered whether the proposed appeal satisfied the second-appeal threshold under CPR 52.13.

1. Application refused. This was a renewed application for permission to appeal, and therefore a second appeal. The Court of Appeal could grant permission only if the proposed appeal raised an important point of principle or practice, or if there was some other compelling reason for the appeal to be heard.
2. The court rejected the argument that Turner J had been required to accept the defendants’ evidence at face value or to leave all questions concerning it to a full trial with oral evidence and cross-examination. On an application under Part 24, the judge was entitled to examine the affidavits and documents to determine whether they disclosed a genuine answer to the claim. That assessment did not, in the circumstances, amount to an impermissible mini-trial.
3. The evidence had not been placed before Master Rose, there was no adequate explanation for the delay, and the material could have been produced earlier. It did not explain the provenance of most of the money and bore the indicia of a partial ex post facto attempt to create a defence. Turner J was entitled to approach it with considerable scepticism and to decide whether it provided any defence, however shadowy.
4. The evidence supported an arguable defence concerning two payments connected with trading activity. Allowing a defence to those transactions did not undermine the Commissioners’ overwhelming case concerning the remainder of the money.
5. Lord Justice Latham gave the principal judgment. Lady Justice Arden agreed, emphasising that the proposed point of principle was put too broadly and that the judge’s approach was justified by the special circumstances. No important point of principle or practice, and no other compelling reason, arose. The formal order was: Application refused.

• Court of Appeal (Civil Division): renewed application for permission to bring a second appeal refused: [2001] EWCA Civ 901.
• High Court, Queen's Bench Division (Turner J): appeal from Master Rose allowed in part, with permission to defend only part of the claim.
• Master Rose: judgment entered for the Commissioners against the second defendants, declaring the relevant property and investment account to be held on trust for the first defendant.