Mehra v Mehra & Aras

An appellate court should not interfere with a trial judge’s findings on credibility and primary fact where they fall within the range of judgment open on the evidence and no error of approach is shown. A judge may accept part of a witness’s evidence and reject another part where a good reason is given. Court orders must be complied with: a late witness statement may be excluded, and little weight may be available where its maker has not been cross-examined. Where an alleged beneficial owner cannot establish actual occupation, the claim to protection under Land Registration Act 2002, s.29 cannot succeed. Permission to appeal was refused because none of the proposed grounds had a real prospect of success.

The appellant claimed beneficial ownership of 101 Park Avenue and sought to set aside its sale to the respondents, Mr and Mrs Aras. The property had been transferred into the first respondent’s name in 1991 and was sold in 2007.

HH Judge Marshall QC rejected the appellant’s account of the 1991 transaction. She also found that the respondents were honest purchasers and, alternatively, that the appellant could not rely on Land Registration Act 2002, s.29 because he was not in actual occupation and the relevant circumstances were not known or obvious. Rimer LJ refused permission on paper. The appellant renewed the application orally before Thomas LJ. The central issue was whether any proposed ground had a real prospect of successfully challenging the judgment.

Renewed application refused. Thomas LJ concluded that there was no basis on which the judgment could be appealed with a real prospect of success.

1. The trial judge made no error of approach in rejecting the appellant’s account of the 1991 transaction. There were serious inconsistencies in his evidence, and the judge was entitled to conclude that his account was inaccurate. The findings were within the area of judgment open to her on the evidence (para. [12]).
2. The judge was entitled to accept part of Mrs Mehra’s evidence and reject another part. There is no general requirement to accept or reject a witness’s evidence as a whole, provided that a good reason is given. A good reason had been given here (para. [13]).
3. The refusal to admit Mr Lyal’s witness statement was not erroneous. Court orders are meant to be complied with. In addition, little weight could have been attached to the statement because Mr Lyal had not attended to be cross-examined (para. [14]).
4. The occupation ground did not strictly arise after the conclusions on the 1991 transaction. Nevertheless, the judge was entitled, having rejected the appellant’s evidence, to find that he had not stayed at the property and that his personal effects were not there. Whatever the legal position concerning the tenancy granted to Miss Zheleznaya, the appellant could not establish actual occupation. Even if the beneficial-interest conclusion had been wrong, the claim would still have failed on this ground (paras. [15]-[16]).
5. The appellant had expressly abandoned any challenge to the respondents’ credibility and could not properly revive it. In any event, the further submissions disclosed no real prospect of showing that the judge’s findings were wrong (paras. [8], [17]-[20]).

The formal order was that the renewed application for permission to appeal was refused.

1. Court of Appeal (Civil Division): On 17 June 2009, Thomas LJ refused the renewed oral application for permission to appeal.
2. Central London County Court: On 28 November 2008, HH Judge Marshall QC dismissed the appellant’s claim and found for the respondents on their counterclaim.
3. Permission application: Rimer LJ had refused permission on paper before the oral renewal.