Smith & Anor v Hughes & Anor

Permission to appeal may be refused where an application is substantially out of time and the delay is inadequately explained, particularly where the applicant was represented at trial and continued to delay after learning of the right to apply. Complaints about a trial judge’s conduct, comments, demeanour or possible bias should be raised promptly and supported by proper evidence. An alleged error in the assessment of damages does not justify an appeal where the same result would follow from an independent finding that no recoverable repair loss was incurred. Permission should also be refused where the proposed grounds disclose no arguable error in the trial judge’s assessment of the evidence.

The claimants alleged that property leased to the defendants had been returned in a damaged and dirty condition, causing substantial remedial costs or loss in value. After hearing expert and factual evidence, His Honour Judge Holt rejected the claim on 11 November 1999, accepting the defendants’ evidence and their expert’s evidence. The claimant, who had been represented at trial, did not pursue an appeal within time and applied substantially out of time. The application raised complaints about the trial judge’s familiarity with experts, a possible prior professional relationship, courtroom conduct and demeanour, and the assessment of damages by reference to the value of the reversion. The central issues were whether the delay should be excused and whether any proposed ground disclosed a realistic basis for an appeal.

1. Application refused. Lord Justice Buxton held that the application had not been pursued with the required despatch. The claimant had been represented by solicitors and counsel at trial, so the absence of timely advice did not adequately explain the failure to appeal. Further delay occurred after the claimant learned that an application to the Court of Appeal was possible. Permission was therefore refused on delay alone.
2. The proposed grounds also disclosed no realistic prospect of a satisfactory appeal. Complaints about the trial judge’s conduct, comments or demeanour required proper evidence and should have been raised while the events were fresh in the minds of those advising the claimant. The alleged familiarity between the judge and the experts did not show partiality. The judge’s judgment analysed the competing expert evidence carefully and even-handedly.
3. The alleged prior professional relationship between the judge and the claimant likewise disclosed no apparent adverse treatment. The judgment showed that the judge reached his conclusions on the evidence rather than on any personal basis.
4. The judge was not wrong to assess damages by reference to damage to the value of the reversion. In any event, that issue could not affect the result because the judge had also found that the claimants had incurred no effective repair losses during the defendants’ tenure. Even on the claimant’s preferred approach, the outcome would have been unchanged.
5. There was therefore no ground for appealing, and permission to pursue the matter in the Court of Appeal was refused.

• Court of Appeal (Civil Division): Lord Justice Buxton refused the application for permission to appeal.
• Norwich County Court: The heading identifies the appeal as arising from that court. The narrative describes His Honour Judge Holt’s judgment as delivered in Ipswich Crown Court on 11 November 1999; the claim was rejected.