Smith v Transport & General Workers Union

Permission to appeal should be refused where the proposed appeal has no realistic, more-than-fanciful prospect of success. An appellate court should respect the trial judge’s findings of fact and evaluative conclusions. It may intervene where the judge has plainly gone wrong, but it does not reweigh evidence merely because another view is possible. In disputes concerning arrangements between family members or partners, a legally binding contract is possible, but the evidence must establish a sufficiently firm and ascertainable intention to create legal relations.

The applicant had succeeded in industrial tribunal proceedings after becoming dissatisfied with the respondent union’s representation. She sought damages from the union, including the amount allegedly payable to her partner under an arrangement for representing her. The county court rejected the claim after finding that no legally binding agreement had been established between the applicant and her partner.

She applied to the Court of Appeal for permission to appeal out of time, challenging the factual and contractual conclusions. The central issue was whether there was a realistic prospect that the county court judge had erred in finding that the arrangement lacked contractual intention and sufficient certainty.

1. Extension of time. The applicant had satisfactorily explained her delay. Time for seeking permission to appeal was enlarged.
2. Permission test. Permission required a realistic, meaning more-than-fanciful, prospect of establishing that the county court judge had erred. The Court of Appeal was not the tribunal of fact. The trial judge was responsible for assessing the potency of individual pieces of evidence and the conclusions to be drawn from them. Intervention could be justified where the judge had plainly gone wrong, but the material relied on did not disclose a realistic prospect of such an error.
3. Contractual intention. A contractual relationship may arise between family members or partners. However, the circumstances had to establish a firm or sufficiently ascertainable contractual arrangement made prospectively, rather than merely a retrospective decision to share the proceeds of litigation.
4. The distinction illustrated by Simpkins v Pays [1955] 3 All ER 10 and Thai Trading v Taylor [1998] 3 All ER 65 did not assist the applicant. The evidence accepted by the county court did not establish an arrangement comparable to an enforceable family agreement or to the ordinary remuneration arrangement involving a solicitor acting professionally.
5. Permission to appeal was refused. Order: application dismissed.

• Court of Appeal (Civil Division): time enlarged for the application, but permission to appeal from the Telford County Court was refused; application dismissed.
• Telford County Court: the applicant’s claim for damages for negligence and/or breach of contract against the union was unsuccessful after the judge found that no legally binding payment agreement with her partner had been established.