Kakembo v Legal & General Assurance Society Limited

Permission to appeal is available only where the proposed appeal has a real prospect of success or another compelling reason to be heard. The court must assess that threshold against the grounds on which an appeal may be allowed: the lower decision must be wrong or unjust because of a serious procedural or other irregularity. A challenge to factual findings based on evidence the trial judge was entitled to accept will not ordinarily satisfy that threshold. Contractual rights remain decisive despite financial hardship. An extension of time may be refused where the proposed appeal lacks merit, despite sympathy for a litigant in person or incorrect procedural information.

Mr Kakembo, an agent under a financial consultancy agency agreement with Legal & General, brought a counterclaim for lost commission after advances were stopped. The Stoke-on-Trent County Court, on 11 April 2001, dismissed the counterclaim and refused permission to appeal. The appeal notice was filed more than six months later, following his alleged reliance on incorrect information that the time limit was 28 rather than 14 days.

Before the Court of Appeal, sitting as a single judge, he sought permission to appeal and an extension of time. He challenged the recorder’s findings, principally on the basis that two witnesses had given materially flawed evidence. The central issues were whether the proposed appeal had a real prospect of success or another compelling reason to be heard, and whether the contractual withholding of advances was legally justified.

1. Disposition. Lord Justice Mummery dismissed the application for permission to appeal and refused the associated extension of time.
2. Applicable standards. Under the Civil Procedure Rules, Part 52.3(6), permission required either a real prospect of success or another compelling reason for the appeal to be heard. The court also considered rule 52.11(3), under which an appeal may be allowed where the lower court’s decision was wrong or unjust because of a serious procedural or other irregularity.
3. Merits. The recorder had made findings of fact on evidence which he was entitled to accept. Allegations that witnesses’ evidence was flawed did not establish a real prospect that the decision was wrong. On the recorder’s findings and the contractual documents, Business Plan D made the advances conditional on achieving the required level of commission production. Legal & General were therefore entitled to stop the advances when that condition was not met. The resulting financial difficulty and inability to earn further commission did not convert the contractual refusal into a breach.
4. Extension of time. The court recognised the applicant’s difficulties as a litigant in person and the incorrect information about the time limit. Lord Justice Mummery indicated that, had the appeal had a real prospect of success, he would have granted an extension despite the substantial delay. Since the merits threshold was not met, those circumstances could not justify extending time. Order: permission to appeal refused.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 655, Lord Justice Mummery dismissed the application for permission to appeal and refused an extension of time.
• Stoke-on-Trent County Court: On 11 April 2001, Mr Recorder David Tucker dismissed the counterclaim and refused permission to appeal.