Zambia v Meer Care & Ors

At the permission stage, permission to appeal may be granted where the proposed grounds make it reasonably arguable that the lower court should not have reached its conclusion even on the material available to it. The merits need not be finally resolved at that stage. An application to adduce further evidence is a separate question. Where its admissibility, weight and consequences require fuller consideration, it may be adjourned to the substantive appeal. A stay of execution already granted may continue pending the appeal.

The 12th defendant applied for an extension of time, permission to appeal, and permission to rely on additional evidence against orders made by Peter Smith J in the Chancery Division on 4 May and 29 June 2007. Judgment had been entered against him for sums exceeding $1.8 million in respect of conspiracy, dishonest assistance, and money had and received.

He had not participated in the proceedings. He said that the proposed evidence would explain both his non-participation and the discrepancy between his earlier account of the suits supplied to the former president and the larger sums traced as having been paid to him. The central issues were whether the proposed appeal was reasonably arguable, and whether the fresh-evidence application should be determined immediately or at the full appeal.

The Court of Appeal, in a judgment delivered by Lord Justice Lloyd and agreed to by Lord Justice Laws, granted the extension of time and permission to appeal. The application concerning additional evidence was adjourned to the hearing of the full appeal, and the existing stay of execution was continued pending that appeal.

1. Permission to appeal. On the face of the judgment below, there was enough material to make it reasonably arguable that the judge ought not to have reached his conclusion, even on the evidence then before him. The court therefore granted permission without determining the substantive merits.
2. Additional evidence. The application to rely on further evidence raised a distinct issue. The appropriate course was to preserve the position of all parties by postponing the application until the full appeal, when the court could decide whether the evidence should be admitted, what weight it should receive, and what implications or consequences it might have.
3. Stay and directions. The stay of execution previously granted on paper was continued pending the appeal. Further case-management directions were left until it was known which of the numerous related appeals would proceed.

The underlying judgment had drawn an inference of participation in the conspiracy, or dishonest assistance, partly from the unexplained difference between the payments traced and the value of the suits previously accounted for. The Court of Appeal considered that the proposed challenge to that reasoning was sufficiently arguable for permission to be granted.

• Court of Appeal (Civil Division)—allowed the applications for an extension of time and permission to appeal against the Chancery Division orders dated 4 May and 29 June 2007. The fresh-evidence application was adjourned to the full appeal, and the stay of execution continued.
• High Court of Justice, Chancery Division—Peter Smith J entered judgment against the 12th defendant for sums exceeding $1.8 million in respect of conspiracy, dishonest assistance, and money had and received.