Jolghazi & Anor v Ali & Anor

Permission to appeal requires a real prospect of success. A trial judge’s assessment of credibility, competing medical evidence and contemporaneous records will stand where the judge was entitled to prefer one account and no realistic appellate error is shown. New expert evidence must satisfy the applicable requirements for admitting evidence on appeal; a post-trial attempt to recast evidence already given will not suffice. Permission may be granted where material medical evidence was not addressed and there is a real prospect that damages were set too low. An extension of time may be justified where litigants in person filed a notice in time in the wrong court.

The claimants sought permission to appeal against a judgment of HHJ Cowell in the Central London County Court dated 2 July 2004. Liability for a 1997 road traffic accident was admitted, and the trial concerned quantum. Mr Jolghazi received £1,500 in general damages and Mrs Jolghazi received £5,000. Mr Jolghazi challenged the findings on his credibility, medical evidence and MRI scan, and relied on a post-trial expert letter. Mrs Jolghazi contended that the judge had failed to address later medical evidence indicating continuing back pain and had therefore assessed her damages too low. Both applicants also sought an extension of time for filing the notice of appeal.

1. Mr Jolghazi. Permission to appeal was refused. The trial judge was entitled to reject Mr Jolghazi’s evidence, prefer the defendants’ orthopaedic and psychiatric experts, and rely on the absence of contemporaneous medical evidence and later reports indicating early recovery. The video evidence, the general practitioner’s records and the MRI scan provided a rational evidential basis for the findings. The scan, taken more than five years after the accident, showed degenerative changes rather than a specific accident-related injury. There was no realistic prospect of successfully challenging those conclusions on appeal (paras [10]–[23]).
2. The proposed new evidence did not satisfy the Ladd v Marshall test. The expert’s later explanation sought to recast evidence already given, and its percentages could not readily be reconciled with the earlier evidence. It was not a proper basis for an appeal (paras [19]–[21]).
3. Mrs Jolghazi. Permission to appeal was granted. The judge accepted her immediate pain and injury and made no adverse finding that she was unreliable or exaggerating. Although the judge was entitled to find that she was well on the way to recovery by the summer of 1998, he did not address the July 1999 report recording continuing and troublesome lower back pain. That omission created a real prospect that the general damages, particularly in light of the award for a year’s loss of earnings from July 1998, had been set too low (paras [24]–[31]).
4. The grounds in Mrs Jolghazi’s case were adequately, though imperfectly, framed. The court permitted amendment so that the accepted argument could be properly presented. Time was extended for both applicants because, although the notice was 28 days late in the Civil Appeal Office, it had been filed in time in the local court and the error was that of litigants in person (paras [30]–[32]).

• Central London County Court: HHJ Cowell determined quantum on 2 July 2004 after liability had been admitted. General damages of £1,500 were awarded to Mr Jolghazi and £5,000 to Mrs Jolghazi.
• Court of Appeal (Civil Division): Permission to appeal was refused for Mr Jolghazi and granted for Mrs Jolghazi. Time was extended for both applicants, and amendment of Mrs Jolghazi’s grounds was permitted.