Piper v Wilson

On an application for permission to appeal, the court may adjourn the application for an inter partes hearing where the applicant identifies a potentially material procedural unfairness requiring investigation. This is particularly so where the applicant is a litigant in person and relevant evidence or documents may not have been properly addressed. The court should not summarily dismiss the application before the respondent has had an opportunity to answer the point. A general allegation of unfairness may likewise require further development before it is rejected.

The claimant sought permission to appeal from a judgment given by Ms Recorder Eady on 22 November 2004 concerning payment for work allegedly carried out at the defendants’ house. The claimant challenged the treatment of expert evidence about the value and nature of the work, arguing that the expert had relied on one schedule and had not considered a fuller later schedule which was said to have been known to the parties.

The claimant appeared in person. The defendants were absent and unrepresented. The central issue was whether the alleged evidential defect and broader complaint of unfairness justified dismissing the permission application summarily or required an inter partes hearing.

Application adjourned. Lord Justice Neuberger adjourned the application for permission to appeal so that it could be heard inter partes. No final decision was made on permission to appeal or on the merits of the underlying dispute.

1. The judge initially considered that the lower judgment was full and careful, resolved factual disputes and assessments which were difficult, and was one the recorder was entitled to reach. Several of the claimant’s complaints appeared unimpressive on their face.
2. Nevertheless, the claimant identified a potentially material concern about the evidential basis of the valuation. The defendants’ expert, Mr Cox, had given evidence by reference to a schedule which did not take account of a fuller second schedule prepared around December 2002 or January 2003. The claimant said that the second schedule had not been challenged and was generally agreed, and that an attempt had been made to amend the expert evidence to address it.
3. Although the claimant had not put the contents of the second schedule to Mr Cox, he was a litigant in person. The judge and the defendants’ representatives knew of the schedule. In those circumstances, it might have been generally unsatisfactory and unfair for the case to have been resolved without the issue being properly addressed.
4. It would therefore have been unjust simply to dismiss the application before hearing the defendants’ response. The broader allegation of general unfairness was not sufficiently developed, but it was also not appropriate to dispose of it without allowing the claimant a proper opportunity to present it.
5. The defendants could attend the resumed hearing or provide written submissions at least one week beforehand. The judge indicated that permission would ordinarily be heard separately from any appeal, and reserved the costs of the hearing.

1. Court of Appeal (Civil Division): On 25 July 2005, Lord Justice Neuberger adjourned the claimant’s application for permission to appeal and directed that it be heard inter partes.
2. Lower court: Ms Recorder Eady gave judgment on 22 November 2004 in proceedings concerning payment for work carried out at the defendants’ house. The judgment citation was not stated in the judgment.