Tibbs v London Borough Of Islington

Permission to appeal may be granted where apparently credible new evidence gives the proposed appeal a real prospect of success on a properly identified issue. At the permission stage, the court need not determine whether the evidence is admissible or what weight it should receive. Those matters may be left to the full court on a properly made application. Permission should be confined to the point that has a realistic prospect of affecting the decision. Other issues, including doubts about the legal ingredients of the proposed tort, need not be finally resolved where they are not determinative at that stage.

The claimant’s bankruptcy lasted about two years after the respondent local authority claimed substantial arrears for rates and Council Tax. The trustee in bankruptcy rejected nearly all of the claim. The claimant paid the remaining amount under protest, and the bankruptcy was annulled.

The Master permitted amendments advancing misfeasance in public office, negligence, malicious prosecution and malicious falsehood. On the council’s appeal, Judge Playford QC struck out all claims except misfeasance in public office. The claimant sought permission to appeal in order to reinstate the malicious prosecution claim, relying principally on newly discovered documents concerning one property. The central question was whether that evidence gave the proposed appeal a real prospect of success.

1. Permission granted. The proposed appeal was confined to the reinstatement of the malicious prosecution claim. The claimant’s new evidence appeared credible and, if admitted, created a real prospect that the full court would reinstate that claim.
2. The new evidence concerned the claimant’s alleged liability for rates at 153 Whitecross Street. It potentially supported the contention that the amount owed was below the statutory minimum required to found a bankruptcy petition. This could affect the judge’s reasoning that the council had been owed more than the minimum and therefore could not have wrongfully supported the petition or acted without reasonable or proper cause.
3. Admissibility and weight were not determined at the permission hearing. The full court would decide those matters on a properly made application to rely on further evidence. The court indicated that the application should be prepared in proper form, with at least the assistance of legal advice.
4. The judge had also expressed doubts about whether a supporting creditor could prosecute bankruptcy proceedings and about the pleading of malice. Those observations were not treated as determinative of permission. If the new evidence were not admitted, however, the claimant’s prospects on the appeal would be poor.
5. The notice of appeal was not framed as narrowly as the permission granted. The operative order therefore granted permission to appeal and adjourned the application to rely on further evidence to the full court.

• Master Tennant: permitted the claimant to advance claims in misfeasance in public office, negligence, malicious prosecution and malicious falsehood.
• High Court, Judge Playford QC sitting as a deputy High Court judge: allowed the council’s appeal in part and struck out all claims except misfeasance in public office.
• Court of Appeal (Civil Division): granted permission to appeal, limited to reinstatement of the malicious prosecution claim, and adjourned the further-evidence application to the full court.