Smurthwaite v Simpson-Smith & Anor

Permission to appeal should be confined to grounds with a real prospect of success; granting permission does not predict the result. Where a proposed ground depends on facts to be established at an imminent trial, the Court of Appeal should not ordinarily determine it in advance unless a preliminary issue has been ordered. An allegation that an interlocutory order was obtained through misrepresentation is ordinarily addressed first to the court that made the order, by an application to set it aside. A permission application may be adjourned where the trial may remove the need for an appeal. A costs challenge may nevertheless justify permission where later disclosure provides a real prospect that the original costs order was unjust.

The applicant was pursuing proceedings under the Insolvency Act 1986 seeking to set aside a voluntary arrangement. A Deputy High Court Judge dismissed an application for specific disclosure on 13 December 2004 and ordered costs of £6,000. More than 100 documents were later disclosed, leading to allegations that the court had been misled about the documents and legal representation.

Arden LJ refused permission to appeal on the papers. Laddie J later dismissed an application for review of the original order and made a further costs order. The Court of Appeal treated renewed applications concerning both orders as before it. The central issues were whether permission should be granted on the costs question, whether other grounds should await the trial, and whether the question of a reputed wife under section 435(8) should be determined in advance.

Lord Justice Mummery dealt with two connected applications for permission to appeal.

1. Disposition. Permission to appeal against the costs order in application 2005/0033 was granted only on the issue whether the applicant should bear costs of an unsuccessful disclosure application when subsequent disclosure suggested that relevant documents had existed. The remaining grounds in that application, and the application concerning Laddie J’s order in 2005/0541, were adjourned until after the trial. Execution of both costs orders was stayed pending final determination of the permission applications.
2. Real prospect of success. The grant of permission signifies only that the proposed appeal has a real prospect of succeeding. It is not a guarantee that the appeal will succeed. Although the other grounds faced substantial difficulties, the later disclosure gave the costs ground a real prospect of success.
3. Alleged misrepresentation. Where the complaint is that an order was obtained after misrepresentation to the court about representation or disclosure, the appropriate course is ordinarily to apply to the court that made the order to set it aside on that basis. The issue should not simply be presented to the Court of Appeal as an argument that the order was erroneous.
4. Issues dependent on the trial. It was premature to rule on whether a person was a reputed wife within section 435(8) of the Insolvency Act 1986. It is not normal procedure for the Court of Appeal to decide a legal issue before the facts have been established at trial, unless there has been an express order for the trial of a preliminary issue.
5. Adjournment and case management. The appeal could not be decided before the imminent trial, and the trial might make further consideration unnecessary. There was therefore no practical justification for deciding the remaining permission questions in advance.

• Court of Appeal (Civil Division) — In [2005] EWCA Civ 427, permission to appeal was granted on the costs issue only in application 2005/0033. The remaining grounds and application 2005/0541 were adjourned, and stays of execution were granted.
• Earlier Court of Appeal consideration — Arden LJ refused permission on the papers on the basis that the proposed grounds had no real prospect of success.
• High Court, Chancery Division — A Deputy High Court Judge dismissed the specific-disclosure application on 13 December 2004 and ordered costs. Laddie J dismissed a subsequent application for review and made a further costs order.