Ali v Butt (t/a Nationwide Financial Services)

Permission to appeal should be refused where the proposed appeal has no real prospect of success. A defendant is not debarred from defending where the relevant unless order has been complied with, including within an extension granted by the court. Where the trial judge has resolved disputed allegations on the evidence, accepted the defendant’s account and addressed the matters raised, allegations dependent on rejecting that account do not establish a proper appellate prospect without an identifiable error.

Mr Ali brought a claim against Mr Butt, a financial adviser who had arranged mortgage finance for property intended for use as a restaurant. He alleged negligence, breach of contract, conspiracy, deception and fraud. The Central London County Court rejected those allegations, dismissed the claims, and found that Mr Ali had no sustainable cause of action.

Mr Ali applied for permission to appeal. He argued principally that Mr Butt had been debarred from defending, and also alleged serious factual, legal and procedural errors. The central questions were whether the defendant had complied with the relevant procedural orders and whether the proposed appeal had a real prospect of success.

1. Permission refused. Lord Justice Aldous, sitting alone, held that there was no real prospect of the appeal succeeding.
2. The alleged procedural bar did not assist Mr Ali. The unless order required Mr Butt to lodge a listing questionnaire by a specified date, subject to a later extension. The judge found that the questionnaire had in fact been lodged within the extended period. There was therefore no basis for treating Mr Butt as debarred from defending.
3. The trial judge had dealt with the issues raised and decided them on the evidence. He accepted Mr Butt’s evidence about the proposed additional finance and the £500 payment. He also rejected the alleged conspiracy and found the claim for loss of assets wholly unsustainable.
4. Once the trial judge had accepted Mr Butt’s evidence, the allegations of conspiracy, deception and fraud fell away because they depended on that evidence being disbelieved. Mr Ali’s amended grounds repeated allegations and asserted errors, but identified no proper basis for appellate intervention or any real prospect of overturning the findings.
5. The formal order was: application for permission to appeal refused.

• Court of Appeal (Civil Division): application for permission to appeal against the judgment and order of Mr Recorder Harrod dated 21 November 2001 refused.
• Central London County Court: Mr Ali’s claim against Mr Butt was dismissed.