Kinnear v Whittaker

Where a possession claim raises substantial factual disputes and no clear binding authority resolves the legal issue, an appellate court should generally allow the case to proceed to trial before deciding the issue on appeal. The legal question is better determined on established findings of fact than on pleadings alone. In deciding a renewed permission application, the court may consider whether the trial is likely to conclude before any appeal would ordinarily be heard. A party who seeks effective summary judgment bears the resulting costs consequences if that course fails. Lack of legal aid for the trial is not, without more, a sufficient reason to grant permission.

The applicant’s receivers brought a possession claim after default under a mortgage. The respondent had remained in occupation after an agreement concerning the property and claimed an oral right to remain indefinitely, together with a right of pre-emption. She relied on proprietary estoppel and constructive trust.

The County Court made an order for possession. Bean J allowed the respondent’s appeal, holding that the legal issue was not governed by clear binding authority and that the disputed facts made summary determination inappropriate. He remitted the claim for trial. The applicant sought renewed permission to appeal, principally concerning whether section 2 of the Law of Property Act 1989 excluded the respondent’s equitable claims.

The Court of Appeal refused permission to appeal.

1. Bean J’s decision was substantially a case-management decision. The applicant accepted that the legal issues were not governed by clear binding authority. There was therefore no basis for impugning his assessment that the claim should proceed to trial.
2. Where the legal issue depends on disputed factual contentions, it is preferable to decide it, if necessary, on findings of fact rather than on the pleadings. The court did not determine whether section 2 of the Law of Property Act 1989 excluded a defence based on proprietary estoppel or constructive trust.
3. The directed trial windows meant that the trial would be completed before an appeal against Bean J’s judgment would ordinarily be heard. That timing strengthened the case for refusing permission. The respondent’s lack of legal aid for the trial was not a sufficient reason to grant permission.
4. The applicant had chosen to seek, in effect, summary judgment. He therefore had to bear the substantial costs consequences flowing from the failure of that application before Bean J.

The observation that permission would have been granted if Bean J had decided the matter after a trial was conditional and obiter. The operative order was that permission to appeal was refused.

• Court of Appeal (Civil Division): refused the renewed application for permission to appeal: [2011] EWCA Civ 1609.
• High Court, Queen’s Bench Division: Bean J allowed the respondent’s appeal against the County Court’s possession order and remitted the claim for trial on 21 June 2011.
• Chelmsford County Court: His Honour Judge Lochrane made an order for possession and costs on 4 October 2010.