Aviva Life & Pension UK Ltd v Strand Street Properties Ltd & Anor

On a renewed application for permission to appeal, the Court of Appeal applies a filtering exercise directed to excluding cases with no reasonable prospect of appeal. Permission may nevertheless be granted where the proposed grounds warrant consideration by the full court, including grounds challenging factual findings, although such permission is uncommon. At this stage the court does not finally determine whether the trial judge erred. It may permit an appeal to proceed where arguable issues concern contemporaneous evidence, the legal character of a contractual liability, consideration, agency or ratification, or whether an issue was properly before the trial judge.

The application was an oral renewal of permission to appeal from an order made by Morgan J after a seven-day trial. The order awarded approximately £643,000, with interest and costs, against Strand Street Properties Ltd. Permission had been refused by the trial judge and later by Stanley Burnton LJ on paper.

The proposed appeal concerned findings that oral fee-sharing agreements existed, whether the resulting liability was a debt or an account, consideration, and the authority and ratification of London & Paris Estates Ltd to act for Strand Street Properties Ltd. The central issue was whether the proposed grounds had sufficient prospects to justify permission for a full appeal.

Permission to appeal granted. Lord Justice Lloyd emphasised that the application was a filter process for cases which had no reasonable prospect of appeal. Although the proposed appeal faced an uphill task, and permission on factual issues was uncommon, the appellant was entitled to have the grounds considered by the full court.

1. Contemporaneous evidence. It was arguable that the trial judge had failed, when finding that an agreement existed, to explain how that conclusion was consistent with a letter sent three days later which appeared not to confirm the alleged fee-sharing agreement. The Court of Appeal left open whether the judge had nevertheless had the letter in mind and whether the finding could be reconciled with it.
2. Debt or account. The proposed appeal raised a distinct legal issue concerning whether the agreement created an immediately enforceable debt, subject to set-off, or a liability to account. The limitation consequences of those analyses differed, because a new claim for an account would have been out of time.
3. Consideration. It was arguable that the factual basis for the judge’s finding of consideration, namely uncertainty as to which party was liable to third-party fee earners, had not been adequately identified in the evidence.
4. Agency and ratification. The remaining grounds concerned LPE’s authority to act for SSP and the finding of ratification. They raised both the sufficiency of the evidence and whether ratification had been pleaded. The trial judge had stated that the parties were bound by their pleadings unless they were amended.

The court granted permission on all grounds sought to be relied on, except ground 3, which was not pursued. The order did not determine the merits of the proposed appeal.

• Court of Appeal (Civil Division) — Stanley Burnton LJ refused permission on paper on 17 July 2009. On oral renewal, Lord Justice Lloyd granted permission on all grounds pursued except ground 3: [2009] EWCA Civ 1186.
• High Court of Justice, Chancery Division — Morgan J, following a seven-day trial, entered judgment for approximately £643,000 with interest and costs and refused permission to appeal.