Abbey National Plc v John Perry & Co & Ors

Permission to appeal already granted will be discharged only for a compelling reason. The question whether proposed new facts arise from the same or substantially the same facts as those pleaded may require either an overall impression or detailed analysis, depending on the case. A party’s failure to cite an authority will not ordinarily justify setting aside permission where the relevant principles were already before the granting judge. The permission stage asks whether the appeal has a real prospect of success; it does not require the judge to be personally persuaded that the appeal will succeed.

The proceedings concerned professional negligence claims arising from conveyancing transactions. Abbey National sought permission to amend its statement of case by replacing a constructive trust allegation with a claim concerning the limited purpose for which mortgage advances were paid. It also sought permission to serve a reply alleging deliberate concealment for the purposes of section 32 of the Limitation Act 1980.

Rimer J allowed the amendments and the reply. Robert Walker LJ granted permission to appeal, considering that the issues were difficult and important to managed litigation. Abbey applied to the Court of Appeal to discharge that permission, relying on omissions and alleged deficiencies in the permission application. The central issue was whether there was a compelling reason to interfere with the grant of permission.

1. Application refused. The Court of Appeal declined to set aside the permission to appeal and ordered Abbey to pay the respondents’ costs of £4,417 within 14 days.
2. The proper threshold was whether there was a compelling reason to discharge permission already granted. The fact that Robert Walker LJ was not personally convinced that the appeal would succeed did not undermine his conclusion that it had a real prospect of success.
3. The omission of Nationwide Building Society v Thimbleby & Co from the permission papers was not compelling. The principles that the question whether facts were substantially the same was a matter of impression, and that appellate courts should defer to case-management decisions, were already well established and had been before the granting judge. The omission therefore was unlikely to have significantly affected his reasoning.
4. The Court explained that, although the substantially-same-facts question may sometimes be a matter of impression, it could require analysis in this case. The appeal raised a genuine issue as to whether the facts supporting the original constructive trust claim were the same as, or substantially the same as, those supporting the proposed purpose trust claim. This approach was consistent with the discussion in Thakerar [1999] 1 AER 400.
5. Arguments concerning inconsistency, delay and the allegation of deliberate conduct were properly matters for the substantive appeal. The Court of Appeal was not required at the permission-discharge stage to restrict the issues capable of being argued.

Sumner J agreed with Arden LJ.

• High Court, Chancery Division: Rimer J made an order on 14 February 2001 allowing Abbey to amend its statement of case and serve replies in four test cases.
• Court of Appeal: Robert Walker LJ granted permission to appeal on 23 March 2001.
• Court of Appeal (Civil Division): The application to discharge that permission was refused, with costs.