Hinton v Slay (t/a Autosave Topp Agencies) & Ors

Permission to appeal may properly be granted where the proposed appeal has a respectable chance of success and the lower proceedings may not have afforded the applicant a fair opportunity to present a material case. Refusal to allow an allegation of partnership without amendment, followed by refusal of amendment, may create a serious procedural issue. Prior notice is also relevant: where the proposed defendant has already made an unsuccessful challenge to the allegation, it may be difficult to contend that it caused surprise at trial. Permission may therefore be granted even where the evidence is not strong and the likely consequence of success is a remittal.

Three claimants obtained judgment against Andrew Slay and sought judgment against Mrs Slay as well. They alleged that she had been held out as Mr Slay’s partner sufficiently to make her a partner in law. The judge refused to allow the allegation to be argued without amendment and then refused permission to amend.

Lord Justice Sedley had initially refused permission on the papers, but fuller argument showed that Hinton and Garner had a respectable chance of success on whether there was a sufficient case implicating Mrs Slay in the partnership. Mrs Slay had also previously made an unsuccessful pre-emptive challenge to that allegation before the district judge. The central issue was whether permission to appeal should be granted in light of the arguable merits and the fairness of the pleading decisions.

Lord Justice Sedley delivered the substantive reasons, and Lord Justice Dyson agreed. Permission to appeal was granted for Hinton and Garner.

1. The Court of Appeal considered that the proceedings appeared not to have given the applicants a fair opportunity to present their case. The impression was based on the way the hearings had been conducted and on the refusal to permit the partnership allegation to be advanced without amendment, followed by refusal of amendment.

2. The evidence of partnership was not strong. However, fuller written argument established that the appeals had a respectable chance of success on whether there was a sufficient case to implicate Mrs Slay in the partnership. That was enough to make these proper cases for permission to appeal.

3. Mrs Slay’s unsuccessful pre-emptive challenge to the allegation before the district judge was material. It made it difficult for her to contend at trial that the allegation had taken her by surprise. It also made it difficult to justify the trial judge’s approach to the need for pleading and amendment without an appeal against the district judge’s decision.

4. The Court indicated that, if the appeals succeeded, the cases would probably have to go back for further proceedings, although Lord Justice Sedley recognised that he might be wrong about that. Mr Clarke’s case had previously been found to disclose no viable grounds and was not revived.

Order: Application granted.

• Court of Appeal (Civil Division): On 21 May 2001, permission to appeal was granted to Hinton and Garner.
• Earlier proceedings: The judge refused to allow the partnership allegation to be argued without amendment and refused permission to amend. Permission to appeal had initially been refused on the papers.