Levy v Stanley Leisure Casino

Permission to appeal requires a reasonable prospect of persuading the Court of Appeal to reverse the decision under challenge. An appellate court should be slow to interfere with findings of fact made by a trial judge who heard the evidence.

Procedural complaints must be assessed against the full record. Firm control of evidence, relevant questioning and limits on peripheral matters do not, without more, establish bullying or bias. A party cannot complain that an opposing witness was not called where the order required only notification of the intention to call that witness, and the complaining party could have called the witness itself subject to compliance with evidence directions.

Mr Levy claimed damages against Stanley Leisure Casino under section 20 of the Race Relations Act 1976. He alleged that a casino deputy manager had racially abused and pushed him, threatened to bar him, and that the defendant later refused an apology.

His Honour Judge Collins, sitting at the Central London County Court, questioned whether the allegation amounted to discrimination but heard the evidence and found that the abuse had not occurred. Mr Levy sought permission to appeal on grounds concerning limitation, an order restricting witness evidence, alleged judicial bias, and the failure to call Mrs Armenian. The central issue was whether any ground gave a reasonable prospect of reversing the factual decision.

Application refused. Lord Justice Waller applied the test that permission to appeal should be granted only where there is a reasonable prospect of persuading the Court of Appeal to reverse the decision under challenge. Findings of fact made by a trial judge who heard the evidence are particularly difficult to challenge on appeal because that judge had the advantage of hearing the witnesses.

1. Limitation. Judge Collins raised whether the claim had been started within six months of the incident, subject to the statutory circumstance capable of extending time. He nevertheless exercised latitude and continued to hear the case. This point gave no reasonable prospect of success.
2. Witness evidence. The claimant had failed to comply with directions requiring exchange of witness statements and had been barred from calling oral evidence. The judge nevertheless allowed him to give evidence from his particulars of claim and letters. The absence of a notice of appeal against the evidential order did not justify permission, particularly because the judge had already granted that indulgence.
3. Alleged bias. The full transcript showed that Mr Levy was allowed to give his evidence without interruption and to cross-examine the defendant’s witnesses. The judge’s questioning was directed to the requirements of the Race Relations Act 1976, and his firm control of the evidence was proper. A restriction on historical evidence concerning 1985 was later relaxed, and in any event the issue concerned the alleged incident in December 1999. The description of the judge’s conduct as bullying or intimidating was therefore unsustainable.
4. Mrs Armenian. The relevant order required the defendant to state whether it intended to call her, not to call her. The defendant had complied by stating that it saw no reason to produce her. Mr Levy could have called her himself, subject to compliance with the directions concerning witness statements. No prejudice or arguable error was shown.

Standing back from the grounds, there was no reasonable prospect of persuading the Court of Appeal to reverse the factual finding. Continuing the matter would merely expose Mr Levy to the risk of costs. The application for permission to appeal was refused.

1. Central London County Court — His Honour Judge Collins heard the claim for damages under the Race Relations Act 1976 and found that the alleged abuse had not occurred on 5 March 2002.
2. Court of Appeal (Civil Division) — Lord Justice Waller refused permission to appeal: [2002] EWCA Civ 1305.