Gayle v Gayle & Anor

Permission for a second appeal requires an important point of principle or practice, or another compelling reason, under the Access to Justice Act 1999. The practical importance of a dispute to the litigant is insufficient by itself. A challenge to findings of fact and credibility ordinarily provides no basis for appellate intervention, particularly on a second appeal. An extension of time requires an adequate explanation for delay. A short period of adjustment may be excusable, but a substantial unexplained delay is not.

The claimant sought permission for a second appeal concerning the beneficial ownership and occupation of a flat. His original claim, brought as one of two executors, was struck out because the co-executor was not joined. The proceedings continued on the first defendant’s Part 20 claim, which succeeded at trial before Mr Recorder Elvidge on 10 September 2004. The High Court, presided over by Sir Donald Rattee, dismissed the first appeal on 18 November 2005.

The claimant challenged the trial judge’s factual and credibility findings, the refusal of an adjournment, and the treatment of the transaction and a 1992 document. The application also sought an extension of time and a stay of execution. The central questions were whether the statutory threshold for a second appeal was met and whether the delay should be excused.

Lloyd LJ refused permission to appeal, refused an extension of time and refused a stay of execution.

1. Second appeal threshold. Under section 55 of the Access to Justice Act 1999, the Court of Appeal could hear a second appeal only if it raised an important point of principle or practice, or there was some other compelling reason. The case did not raise an important point of principle or practice. Its practical importance to the claimant was acknowledged but did not itself amount to a compelling reason.
2. Findings of fact and credibility. The Recorder had heard the evidence and made findings based on the parties’ credibility. The High Court had properly rejected the challenge to those findings. There was no basis for intervention even on a first appeal, and therefore no realistic prospect of success on a second appeal. The claimant’s criticisms of the transaction, the payments and the informal occupation arrangement could not satisfy the statutory threshold.
3. Extension of time. The High Court order was made on 18 November 2005, whereas the appellant’s notice was dated 3 February 2006. The applicable period was 14 days. A short delay while a litigant adjusted to acting in person might have been understandable, but the longer delay was unexplained. The refusal of an extension was therefore upheld. In any event, granting extra time would not have justified permission to appeal.
4. Orders. The application for permission to appeal, the application for an extension of time and the application for a stay of execution were each refused.

• Court of Appeal (Civil Division): On 23 March 2006, the application for permission for a second appeal was refused. An extension of time and a stay of execution were also refused: [2006] EWCA Civ 462.
• High Court of Justice, Chancery Division: Sir Donald Rattee dismissed the claimant’s first appeal on 18 November 2005.
• Bromley County Court: Mr Recorder Elvidge gave judgment on 10 September 2004, substantially allowing the first defendant’s Part 20 claim and making orders concerning ownership, possession, the mortgage charge, accounting and costs.