Ali v Khan & Ors

Permission to appeal may be granted where the first-instance judgment raises sufficient concern about the judge’s understanding of a material area of law or treatment of evidence. Here, the Court of Appeal identified possible difficulties concerning estoppel, illegality, advancement and the handling of evidence. The permission ruling did not determine the merits of those issues or whether fresh evidence should be admitted.

The defendants applied for permission to appeal from a judgment of Birmingham County Court, given by His Honour Judge McKenna. The claimant respondent did not appear or have representation. The applicants also sought permission to rely on fresh evidence. The central issue at this stage was whether the judgment raised sufficient grounds for a full appeal, including possible errors concerning estoppel, illegality, advancement and the treatment of evidence.

1. Permission to appeal granted. Lord Justice Aldous considered that there was sufficient material to justify examination by the full court.
2. The matters capable of being raised on appeal included whether the first-instance judge fully understood the law on estoppel, illegality and advancement, and whether he had dealt with some of the evidence.
3. The court made no final determination on the merits of those issues. The application for permission to rely on further evidence was adjourned to the full court.
4. Costs of the permission application were made costs in the appeal. Detailed assessment of the applicants’ Community Legal Services Funding was ordered.

• Court of Appeal (Civil Division) — On the application for permission to appeal, the court granted permission. The application concerning further evidence was adjourned to the full court: [2002] EWCA Civ 452.
• Birmingham County Court — Judgment given by His Honour Judge McKenna; citation not stated in the judgment.