Bay-Sloane v Home Office & Anor

Permission to appeal may be set aside in exceptional circumstances where it was granted on a point that was neither pleaded nor evidenced at trial, since an appeal should not become a different case from that litigated below without very good reason. A late application for permission or an extension of time must also give a complete, accurate and frank explanation. A misleading explanation may itself justify setting aside permission, and an inadequately supported explanation will not ordinarily warrant an extension. The court may determine these defects on the application to set aside rather than leave them to the appeal hearing.

Mr Emmanuel Bay-Sloane claimed damages against the Home Office and Group 4 Security for injuries allegedly sustained while being transported in custody. The claim concerned careless driving, an allegedly defective seat belt and the failure to provide alternative safety arrangements.

After the Croydon County Court, before Mr Recorder Wood, gave judgment, Dyson LJ granted permission to appeal. The defendants applied to set that permission aside. They argued that the principal ground relied upon by Dyson LJ concerned an unpleaded and unsupported case that staff had ignored a complaint that the claimant could not operate the seat belt. They also challenged the explanation given for delay in seeking permission and an extension of time.

Buxton LJ gave the leading judgment, with Latham LJ agreeing. The application was granted, permission to appeal was set aside, and the appeal was dismissed.

1. Unpleaded case. Although setting aside permission is unusual and reserved for exceptional circumstances, this was an appropriate case. The trial issue was whether the seat belt was defective and the claimant had complained of that defect. The issue identified by Dyson LJ was instead whether the claimant had been unable to operate the belt and had been ignored. That issue had not been pleaded, and no evidence had been given about it. Allowing the appeal to proceed on that basis would permit a different case to be pursued. There were no very good reasons for doing so.
2. Duty concerning a prisoner’s safety. The court observed that, if a prisoner in a disadvantageous position had raised a particular difficulty with the safety arrangements, those controlling the vehicle would have had a duty to deal with it. That issue did not arise for decision because the alleged inability to operate the belt was not the case advanced at trial.
3. Delay and candour. The explanation placed before Dyson LJ suggested that new solicitors had had to be instructed and that transcripts could not be obtained. The later evidence showed that the solicitor had continued to handle the matter despite uncertainty concerning his firm. The explanation was therefore incomplete and inaccurate. Even read leniently, it did not provide a sufficient account of the delay. Ex parte paper applications for extensions of time require punctilious care and full frankness. Permission was independently set aside because it had been obtained on a false basis.

The costs of and occasioned by the application were awarded to the applicants.

1. Court of Appeal (Civil Division): On the defendants’ application, set aside Dyson LJ’s grant of permission to appeal and dismissed the appeal.
2. Croydon County Court: Judgment was given by Mr Recorder Wood. The citation of that decision was not stated in the judgment.