Boudh v Boudh & Anor

Permission to appeal on factual issues should be granted only where there is a real prospect of showing that the first-instance judge was wrong. That threshold may be met by an arguable case that the judge reconstructed events in a way not supported by the evidence and thereby misapplied the governing evidential principles.

The appellant sought permission to appeal from the judgment and order of Evans-Lombe J made on 9 October 2006. The underlying dispute concerned competing wills, one of which had been found to be forged and the other upheld. The proposed appeal challenged the judge’s reliance on Mrs Ohri’s evidence and his reconstruction of the events surrounding the making and re-typing of the wills. The central issue was whether the proposed appeal had a real prospect of showing that the judge was wrong.

1. Permission granted. The Court of Appeal applied the requirement that, where issues of fact are raised, permission should be granted only if there is a real prospect of showing that the first-instance judge was wrong.
2. The proposed challenge was not confined to disagreement with the judge’s assessment of evidence. It alleged that the judge had accepted Mrs Ohri’s evidence but then materially reconstructed the events himself, although that reconstruction was not her evidence. The complaint was advanced as a misapplication of the principles in Wintle v Nye [1959] 1 WLR 284.
3. Although the court was reluctant to prolong a family dispute involving an estate of about a quarter of a million pounds, there was sufficient substance in the submissions to establish the required real prospect of success. Permission to appeal was therefore granted.
4. A stay was also granted. The court additionally urged the family to consider resolving the dispute without further expenditure on lawyers, but that observation did not form part of the dispositive reasoning.

• Court of Appeal (Civil Division): on 22 March 2007, granted permission to appeal and a stay.
• Chancery Division: Evans-Lombe J made the judgment and order under challenge on 9 October 2006.