De Crittenden v Estate of Bayliss (Deceased) & Anor

At the permission stage, the Court of Appeal need not decide that the lower court was wrong. Where issues are not straightforward and there is room for argument about conclusions materially affecting the claim, they may merit consideration by a full Court of Appeal. Permission may nevertheless be refused for an amendment which raises no arguable claim, including a claim founded on assets that were never subject to the relevant security. A related amendment may be stood over for determination with the substantive appeal where its proper treatment depends on that appeal.

The claimant brought a second action seeking a tracing remedy and a proprietary interest in 25 Carlton Mews, alleging that money paid under a compromise of Lloyds Bank’s claims had funded the property’s purchase. Her Honour Judge Kirkham refused proposed re-amendments to the Particulars of Claim and dismissed the action. She held that the second action was an abuse of process because the claimant had previously pursued damages for breach of contract, and that the relationship with Mr Bayliss gave rise to no fiduciary duties. The claimant, appearing in person, sought permission to appeal against both orders. The central questions were whether the dismissal raised arguable issues warranting a substantive appeal and how the proposed amendments should be dealt with.

1. Permission against dismissal. The Court of Appeal was not deciding that the judge had necessarily been wrong. However, the issues were not straightforward and there was room for argument on both the election or abuse of process issue and the existence of fiduciary duties. Those issues merited consideration by a full Court of Appeal. Permission to appeal against the order of 17 January 2005 was therefore granted.
2. Plant amendments. The proposed amendments concerning plant allegedly owned by Elston raised no arguable claim. The plant had never been charged to Lloyds Bank. It therefore could not be treated as property recovered or preserved by the compromise in a way capable of supporting the claimant’s agreement-based claim. The judge was entitled, in the exercise of her discretion, to refuse permission for those amendments.
3. £75,000 amendment. The proposed amendment concerning the application of the £75,000 payment might fall into a different category. The application for permission to appeal on that issue was stood over to the hearing of the substantive appeal, with any appeal on the amendment to follow if permission was then granted.
4. The lower court’s findings about the claimant’s knowledge and the contractual findings in the earlier action were recognised as serious obstacles, but they did not remove arguability at the permission stage. The order also directed that the substantive appeal be heard by a three-judge court, one member of which might be a High Court judge.

• Court of Appeal (Civil Division) Permission to appeal against the order dated 17 January 2005 was granted. The application concerning the proposed £75,000 amendment was adjourned to the substantive appeal. Permission concerning the plant amendments was refused.
• High Court of Justice, Chancery Division, Technology and Construction Court Her Honour Judge Kirkham refused the proposed re-amendments on 22 November 2004 and dismissed the second action on 17 January 2005.