Maile & Anor v Hopwood

On a second appeal, permission is available only where the proposed appeal raises an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it. Permission is not a further opportunity to reargue findings made at trial after one appeal has already taken place. A challenge to credibility-based findings will not ordinarily satisfy that threshold merely because the appellant disputes the evidence or considers another conclusion possible. Further evidence is unlikely to provide a compelling reason where it would make little difference to the result. In civil proceedings, genuine documents may be admissible despite an unsatisfactory explanation of how they were obtained.

The applicants claimed money for materials used in repairing a property and repayment of a tenancy deposit. The respondent counterclaimed for unpaid rent and other sums. The Small Claims Court dismissed the claim and ordered the applicants to pay £2,822.71 on the counterclaim.

His Honour Judge Macmillan dismissed the applicants’ first appeal from that decision on 15 July 2002. The applicants then sought permission for a second appeal, a stay of execution and permission to rely on further evidence. Their grounds concerned the burden of proof, factual findings based on credibility, cross-examination, hearsay, the admissibility of documents and a later letter. The central issue was whether the proposed appeal raised an important point of principle or practice, or disclosed another compelling reason for permission.

1. Applications refused. The applicants failed to satisfy the second-appeal threshold in rule 52.13 of the Civil Procedure Rules 1998. The Court of Appeal could not grant permission simply to provide another opportunity to challenge the decision of the trial judge after an appeal had already been heard.
2. The proposed appeal raised no important point of principle or practice. The district judge had correctly understood that the applicants bore the burden of proving their claim and that the respondent bore the burden of proving the counterclaim. His refusal to award the claimed £695 was an example of his applying that burden against the respondent where the evidence was insufficient.
3. The challenge to the finding that £1,500 had been paid was a challenge to fact and credibility. The district judge had seen and heard the witnesses, considered the surrounding evidence, recognised that no bank statement showed a withdrawal of £1,500, and nevertheless preferred the respondent’s account. It was very difficult for an appellate court to take a different view. The circuit judge was entitled to conclude that the finding remained within the generous ambit of reasonable disagreement.
4. There was no proper basis for alleging that the district judge had prevented adequate cross-examination or failed to weigh direct and hearsay evidence. His rejection of the respondent’s claim based on Mr Donaldson’s letter because Mr Donaldson did not give evidence illustrated that he had considered the evidential weaknesses.
5. The later letter was unlikely to make any significant difference. Its reference to money invested in the property was insufficiently clear to establish that the £1,500 had not already been paid. Given the strict rules governing further evidence on appeal, it did not create a compelling reason for permission.
6. The letters allegedly opened unlawfully were not said to be inauthentic. The court considered them admissible despite the unsatisfactory explanation of how they had been obtained, observing that the proceedings were civil rather than criminal.

• Court of Appeal (Civil Division): On 22 November 2002, refused the applications in [2002] EWCA Civ 1798.
• Bury County Court: On 15 July 2002, His Honour Judge Macmillan dismissed the applicants’ appeal from the Small Claims Court.
• Small Claims Court: On 31 May 2001, Deputy District Judge Flanagan dismissed the applicants’ claim and awarded the respondent £2,822.71 on his counterclaim.