Toth v Augar

Permission to appeal should be refused where the proposed appeal has no reasonable prospect of success. That conclusion may be reached where the trial decision turns on credibility findings and the complaints would require an expensive review of a full transcript. Trial judges may use witness statements as evidence-in-chief and impose reasonable time limits on cross-examination. Those case-management measures are not, without more, grounds for appellate intervention.

Mr Toth brought claims against Mrs Augar concerning remuneration allegedly agreed in December 1993 and shares allegedly promised under an oral agreement made in April 1994. He also claimed damages against Ice Sport Limited. After a five-day trial, His Honour Judge Weeks QC preferred Mrs Augar’s evidence, found that Gosport Leisure Limited was responsible for the remuneration and that no second agreement existed, dismissed the claims, and refused permission to appeal. Mr Toth challenged the trial length, evidential and cross-examination restrictions, late material and witnesses, and various factual findings. The central issue before the Court of Appeal was whether those complaints disclosed a reasonable prospect of success.

Application refused. The Court of Appeal considered that the proposed appeal was fundamentally an attack on findings of fact based on witness credibility. The trial judge had reviewed the evidence and expressly preferred Mrs Augar’s evidence where it conflicted with Mr Toth’s. There was no reasonable prospect that a further appellate examination would lead to a different result.

1. The five-day estimate was ample for the case. The trial judge was entitled to manage the hearing and seek to remain within that estimate.
2. Witness statements ordinarily stand as evidence-in-chief. A party calling a witness is not normally entitled to examine that witness orally.
3. A judge may impose time limits on cross-examination. The imposition of a time limit is not, without more, a ground for complaint.
4. The complaints about the late bundle, non-attendance of witnesses, restrictions on reading documents and credibility evidence, witness answers, late witnesses and alleged errors in the judgment did not demonstrate serious injustice or an arguable basis for appellate intervention.
5. Without a full transcript, the Court could not analyse every detailed complaint. Obtaining and reviewing one would be expensive, and would serve no useful purpose where the appeal had no realistic prospect of success.

The application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): Lord Justice Waller refused the application for permission to appeal: [2002] EWCA Civ 873.
• High Court of Justice, Chancery Division: His Honour Judge Weeks QC dismissed Mr Toth’s claims after a five-day trial and refused permission to appeal. The judgment was given on 21 December 2001; no citation is stated.