Black v Pastouna & Anor

An appellate court should not overturn a trial judge’s findings of fact based on the evidence of principal witnesses unless a proper basis for doing so is shown. The court must assess the evidence overall, including documentary material and alleged inconsistencies, but it is not required to address every piece of evidence where the omitted matters are no more than peripheral support for one account. A party’s reliance on participation in an alleged criminal conspiracy may also be a powerful factor against granting permission to appeal where it materially undermines the proposed case. In short applications, parties and their advisers should consider video-conferencing where it is likely to promote the efficient, fair and economical disposal of the proceedings and reduce recoverable costs.

The appellant sought renewed permission to appeal after Jacob LJ had refused permission on the papers. The appeal arose from a possession claim concerning a property occupied by the appellant under documents said by the respondents to create an assured tenancy. The appellant contended that the tenancy was a sham and that she had contributed money towards an understanding that she would ultimately own the property.

The county court judge rejected her account after hearing the principal witnesses and considering the limited documentary evidence. The central issues were whether the judge had adequately addressed inconsistencies and supporting evidence, and whether the appellate court had a proper basis to interfere with his factual findings.

1. Application refused. The county court judge had to decide which of the principal witnesses was telling the truth. He saw and heard them, gave clear reasons, and was supported by the available documentary material. The Court of Appeal could not properly overturn those findings merely because some evidence had not been expressly mentioned.
2. The omitted evidence, including evidence from the appellant’s daughter, a neighbour, and disputed invoices and expenditure, was no more than peripheral support or a disputed strand of evidence. Considered overall, it could not justify appellate intervention.
3. The appellant’s case depended on the proposition that she had participated in a conspiracy to defraud the Housing Benefit office. Even if the evidential basis were insufficient by itself, that feature was a very strong factor against granting permission.
4. Lord Justice Brooke added guidance on the use of video-conferencing. Those advising parties should follow CPR Rules 1.1 and 1.3 by taking available steps to reduce litigation costs, including using video-conferencing where appropriate. For Court of Appeal applications likely to last 30 minutes or less, advisers should consider whether a video-conferencing appointment would be desirable. The court may limit recoverable costs to the lower cost of such an appointment where no feature warrants attendance in person.
5. The matter was directed to a funding assessment. The costs judge was to compare the cost of a half-hour video-conferencing appointment from Liverpool with the costs claimed for attendance at court.

• Court of Appeal (Civil Division): On a renewed application, permission to appeal was refused. The matter was sent for comparative costs assessment.
• Birkenhead County Court: HHJ Phipps had rejected the appellant’s account in the possession proceedings and made findings of fact adverse to her.
• Permission application: Jacob LJ had refused permission to appeal on the papers.