Neave v Neave

Permission to appeal against factual findings will be refused where there is no real prospect that the appellate court would interfere with findings based on the burdens of proof and the available evidence. Fresh evidence is admitted only in the exercise of discretion, having regard to the overriding objective and the proportionate use of court resources. A proposed retrial concerning one issue may properly be refused where it would be disproportionate. In assessing a Part 36 offer, the relevant comparison is whether the judgment is more advantageous than the offer, not whether the terms correspond exactly. That assessment may require comparative valuation and consideration of the costs consequences of the offer.

Mrs Margaret Neave brought proceedings against her son concerning ownership of historic vehicles, including claims in trespass and conversion. After a ten-day county court hearing was continued for three days before Holland J in the Queen’s Bench Division, the judge ordered the return of six vehicles, dismissed the claim concerning three others, awarded damages for trespass, and awarded Mrs Neave one third of her costs.

Mr Hugh Neave renewed an application for permission to appeal on the merits and sought to adduce further evidence. Mrs Neave separately sought permission to appeal against the costs order. The central issues were whether the factual findings should be disturbed, whether fresh evidence should be admitted, and whether the judge had properly addressed the claimant’s Part 36 offers.

1. Applications on the merits. The judge was entitled to place substantial weight on the vehicle log books and to discount evidence of historical incidents which did not necessarily bear on ownership. The relevant burdens of proof had been correctly identified. There was no real prospect that the Court of Appeal would interfere with the findings concerning the vehicles.
2. Fresh evidence. Admission of further evidence is discretionary. The discretion must be exercised consistently with the overriding objective in CPR 1.1, including the need to allot an appropriate share of court resources to the case while taking account of other cases. Evidence available at trial but not obtained, or evidence whose admission might require a new trial, may properly be refused where the resulting proceedings would be wholly disproportionate.
3. Costs. Holland J was entitled to depart from the general rule on costs and to consider the parties’ conduct under CPR 44.3, including the matters identified in CPR 44.3(4) and (5). The Court of Appeal would not interfere merely because it might have reached a different conclusion.
4. Part 36 issue. The judge had not addressed adequately whether the judgment was more advantageous to Mrs Neave than her offers under CPR Part 36.21. The proper comparison was between the ultimate judgment and the proposals, potentially requiring comparative valuation at the offer dates. If the judgment was more advantageous, the specified indemnity-costs and interest consequences might follow, subject to CPR Part 36.21(5). Permission to appeal was therefore granted on that limited issue. Following consideration of Mitchell v James [2002] EWCA Civ 997, the court held that its reasoning did not compel the conclusion that an offer containing a provision reflecting CPR 36.14 necessarily fell outside CPR 36.21.

• Queen’s Bench Division: Holland J made orders on 26 April 2002 concerning the vehicle claims and on 15 May 2002 concerning costs.
• Court of Appeal (Civil Division): Permission to appeal on the merits was refused. Permission concerning costs was granted on the limited question arising under CPR 36.21.