Zamparelli v Bristol City Council

Permission to appeal may be rescinded after fuller consideration where the proposed appeal has no real prospect of success. An appeal should not proceed on an unpleaded and unsupported alternative causation case, particularly where the claimant had a fair opportunity to raise and develop it at trial. A claim for loss of trading profits requires proof that the breach caused recoverable damage. Proof of breach alone is insufficient. The court may also consider proportionality, costs and the procedural history when deciding whether permission should survive.

The claimant claimed approximately £1.5 million for alleged breach of contract and negligence by his landlord, Bristol City Council, and his solicitor, Bond Pearce. The claim concerned the loss of profits from a proposed nightclub. The High Court dismissed the claim and entered judgment for the Council on its counterclaim.

The trial judge refused permission to appeal. The Court of Appeal granted permission on paper, but later adjourned the defendants’ application to rescind it and obtained clarification from the trial judge. The claimant then sought to rely on a possible later start date for the business. The central issue was whether that point gave the appeal a real prospect of success and should permit the appeal to continue.

1. Application granted. Pill LJ, with whom Arden LJ agreed, set aside the grant of permission to appeal.
2. The court’s task was not to determine whether the proposed point was a so-called killer point. The question was whether, after fuller submissions and consideration of the judgment and its rider, there was a real prospect of success. The Court of Appeal was entitled to conduct its own analysis.
3. The proposed case that the nightclub might have begun trading profitably at a later date had not been specifically pleaded, put in evidence, included in the grounds of appeal or skeleton argument, or raised in the questions sent to the trial judge. The claimant had been fully cross-examined and had opportunities to develop the point. The evidential basis consisted principally of an unexplained reference to two potential managers and was too frail to provide an arguable basis for continuation of the appeal.
4. For a claim for loss of trading profits to succeed, the claimant had to establish that, absent the breaches, he would have obtained the necessary planning consent or certificate, operated a nightclub and derived some or all of its profits. It was necessary to show that the breaches caused damage. On the judgment and rider there was no real prospect of establishing significant damage.
5. The court also gave weight to proportionality, including the costs and trouble already incurred and the risk of allowing a second opportunity to advance a case that had not been properly presented at trial.

Order: application granted.

1. High Court of Justice, Chancery Division: the claim was dismissed and judgment was entered for Bristol City Council on its counterclaim. Permission to appeal was refused.
2. Court of Appeal (Civil Division): permission was initially granted on paper. Following the defendants’ application to rescind permission and clarification from the trial judge, the grant of permission was set aside. [2007] EWCA Civ 377