Keshwara v Keshwara

Permission to appeal may be granted where proposed grounds have a real prospect of success, even though overturning witness-based factual findings is difficult. Interference with such findings ordinarily requires the trial judge to have been plainly wrong. A potentially material misunderstanding of the legal nature of a beneficial-interest claim, or apparent inconsistency between factual findings and the evidence, may justify permission. Permission does not indicate that the appeal will succeed. The court may also direct the parties to consider mediation before the appeal is listed.

The claimant sought permission to appeal from the Leicester County Court’s dismissal of his claim to a beneficial interest in part of his parents’ former home. He had contributed approximately £11,000 towards its purchase, but the property and mortgage were placed in his parents’ names. The trial judge found that the contribution was a loan, having preferred the defendant’s evidence. The claimant argued that the judge had misunderstood his case as one involving joint beneficial ownership and survivorship, rather than a proportionate interest as tenant in common, and had relied on matters inconsistent with the factual findings. The central issue was whether the proposed appeal had a real prospect of success.

1. Permission granted. Ward LJ granted permission to appeal, while emphasising that the appeal remained difficult and that permission did not mean it was bound to succeed.
2. Findings of fact. An appellate court faces a substantial obstacle when asked to overturn findings based on the trial judge’s assessment of witnesses. Such findings should not be overturned unless the judge was shown to have been plainly wrong.
3. Real prospect of success. Despite that difficulty, there were sufficient arguments to justify the appeal. The trial judge appeared to have assumed that the claimant asserted a joint beneficial interest which would pass entirely by survivorship on the parents’ deaths. The claimant’s case could instead have been that his contribution gave him a proportionate beneficial interest as tenant in common. That possible misanalysis may have affected the judge’s treatment of the parents’ earlier will and the claimant’s cessation of endowment-policy payments.
4. The judge’s assessment also required scrutiny because the defendant’s varying accounts, including a statutory declaration, appeared inconsistent with the finding that the claimant had provided the purchase money.
5. Case management. The appeal was not to be listed until the parties had actively considered the Court of Appeal’s mediation service. The appeal was to be heard by a court of three, including at least one judge with Chancery experience and preferably one from the Family Division. Costs were reserved.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 1416, Ward LJ granted permission to appeal and directed that mediation be considered before listing.
• Leicester County Court: His Honour Judge Mayor QC dismissed the claimant’s claim to a beneficial interest in part of the property.