Gibbons (A Firm) v Pickard

Permission to appeal may properly be granted where a lower court’s judgment fails to address a significant argument going to the basis of its decision, and its views on that issue cannot be identified with confidence. The omission is not cured merely because the judge may have preferred one party’s evidence. A party is not barred from seeking permission simply because it did not ask the lower court to restore the matter for a further hearing. The substantive question whether an agricultural tenancy existed remained for determination on appeal.

Gibbons (A Firm) v Pickard concerned a claim for possession of two plots of agricultural land. The defendant asserted that he held an agricultural tenancy. The Burnley County Court dismissed the claim after finding that his year-round use of the land had converted the parties’ arrangement into an agricultural tenancy.

The claimants argued that the arrangement was seasonal and that the defendant lacked exclusive possession. The Recorder’s judgment addressed the year-round use but did not explain how the exclusive-possession argument and supporting evidence were resolved. Sir Philip Otton refused permission to appeal on paper. The Court of Appeal considered whether the judgment’s omissions justified granting permission.

The Court of Appeal, comprising Lord Justice Peter Gibson and Lord Justice Tuckey, allowed the renewed application for permission to appeal.

1. The court rejected the contention that permission should be refused because the claimants had not invited the Recorder to restore the matter for a further hearing. Correcting a plain factual error is different from seeking a further hearing to remedy a significant omission in the judgment.
2. The Recorder had correctly asked what the defendant was entitled to do, rather than focusing solely on what he actually did. However, his answer appeared to rely on the defendant’s actual year-round use and did not clearly determine the contractual entitlement.
3. The requirement of exclusive possession was a significant argument going to the foundation of the alleged agricultural tenancy. The Recorder recorded the argument but did not deal with it, despite evidence that the claimants regularly used the land for grazing and exercising horses.
4. Where a judgment fails to address a significant argument going to the basis of the decision, and the judge’s views cannot be identified with confidence, the judgment may be sufficiently defective to justify permission to appeal. It was not apparent whether the Recorder had considered the necessity for exclusive possession or the evidence said to show that it was absent, nor on what basis he would have rejected the argument.
5. Other criticisms, including the treatment of rent, were unnecessary to the decision on permission. The case was ordered to be listed before three judges, with a High Court judge permitted to sit. The substantive appeal was not decided.

• Court of Appeal (Civil Division): On 5 September 2002, Lord Justice Peter Gibson and Lord Justice Tuckey allowed the renewed application for permission to appeal and directed that the case be heard by three judges.
• Burnley County Court: Mr Recorder Williams dismissed the claim for possession with costs on 2 May 2002.
• Permission on paper: Sir Philip Otton refused permission to appeal.