Abrahams v Sterling Credit Ltd.

On a second appeal, permission requires an important point of principle or practice, or another compelling reason. A finding that an applicant has been dishonest in evidence does not, without more, satisfy that threshold. An appellate court is not in as good a position as a judge who heard oral evidence to reassess credibility and should not go behind such findings without a proper basis. The applicant bears the burden under the Civil Procedure Rules 1998 of satisfying the conditions for setting aside an order made in their absence. The application for permission was dismissed.

The appellant sought permission to appeal out of time against the dismissal of her appeal by His Honour Judge Vincent at Plymouth County Court. That appeal concerned the dismissal by Deputy District Judge Schofield of her application to set aside a possession order obtained by Sterling Credit Ltd, as mortgagee. The possession order had been made in her absence. She alleged that the legal charge was forged and challenged the findings rejecting her evidence. The central issues were whether the proposed second appeal met the permission threshold and whether the lower courts had erred in their assessment of her credibility.

1. Lord Justice Parker dismissed the application for permission to appeal out of time. The proposed appeal was a second appeal, so permission could be granted only if the requirements of CPR 52.13(2) were met.
2. The appellant accepted that the proposed appeal raised no important point of principle or practice. The Court also found no other compelling reason to hear it. The fact that the lower court had made, in effect, a finding of dishonesty did not itself satisfy that requirement.
3. Under CPR 39.3, the burden lay on the appellant to bring herself within the conditions for setting aside an order made in her absence. Those conditions included acting promptly, having a good reason for non-attendance, and showing a reasonable prospect of success at trial. The deputy district judge had disbelieved her evidence and found that she had failed to establish the first two conditions.
4. His Honour Judge Vincent had conducted a review rather than a rehearing and found no basis for interfering with the deputy district judge’s conclusions. Lord Justice Parker likewise found no basis for going behind those credibility findings. A judge who heard the oral evidence was in a better position to assess credibility than an appellate court. The absence of evidence from the claimant did not alter the burden on the appellant.
5. The further evidence concerning the sale of the Reading property did not provide a proper basis for permission. The application was dismissed, and the question of extending time did not arise.

• Court of Appeal (Civil Division): Lord Justice Buxton refused permission on the papers on 7 April 2003. On the renewed application, Lord Justice Parker dismissed the application on 19 May 2003: [2003] EWCA Civ 761.
• Plymouth County Court: His Honour Judge Vincent dismissed the appellant’s appeal on 3 February 2003, conducting a review rather than a rehearing.
• Plymouth County Court: Deputy District Judge Schofield dismissed the application to set aside the possession order on 9 October 2002.
• Plymouth County Court: A possession order was made in the appellant’s absence on 14 May 2002.