Slater v Stephen Mark St Patrick Condappa

On a renewed application for permission to appeal, permission should be refused for grounds having no real prospect of success. A non-fanciful point requiring full appellate consideration may justify limited permission. Previous dishonesty does not automatically establish dishonesty in the current proceedings, but requires the judge to approach the witness’s evidence with utmost caution and special care. A trial judge may control cross-examination and exclude peripheral material, provided the conduct does not create unfairness or apparent bias. An alleged oral assurance concerning an interest in land does not suffice by itself. The claimant must also establish detrimental reliance. Remaining in a home or relationship is not detriment without loss of an identifiable benefit or some other way in which the claimant would have been better off by leaving.

The appellant sought renewed permission to appeal from a judgment given on 4 November 2010 by HH Judge Gerald in the Central London Civil Justice Centre. The underlying dispute concerned whether the respondent had agreed that the appellant should have a share in their home. The proposed appeal challenged findings on credibility, alleged judicial bias and unfairness, the treatment of electronic documents, an alleged conversation in 1997, and the requirement of detrimental reliance. The Court of Appeal considered the available trial transcript, which was incomplete, and the appellant’s further particulars of appeal. The central question was whether any proposed ground had a real prospect of success.

1. Disposition. The renewed application was refused on amended Grounds 1, 5 and 6. Limited permission was granted on amended Grounds 2, 3, 4 and 7, but only to challenge the finding that there was no agreement giving the appellant a share in the house on two specified bases: a possible misunderstanding about manipulation of electronic document properties and the failure to address the alleged 1997 conversation.
2. The allegations of bias and unfairness had no real prospect of success. The trial judge was entitled to intervene to clarify evidence, to question the appellant about the continuing benefit of her previous dishonesty, and to restrict cross-examination on peripheral matters going only to credibility. The interventions did not approach the boundary beyond which judicial conduct becomes improper. Evidence which should have been produced at trial could not properly be admitted merely to reverse factual findings.
3. Previous dishonesty did not automatically mean that the appellant was lying in the current proceedings. It did, however, require the trial judge to approach her evidence with the utmost caution and special care. The judge had applied that approach. The respondent’s own admitted deception was also considered, and the judge was entitled, viewing the evidence in the round, to find him reliable on the matters in issue.
4. The incomplete transcript created an arguable issue concerning the electronic documents. The trial judge may have relied, at least in part, on an assumption that the creation date of a document could not be made to appear earlier by resetting the computer clock. There was no clear evidence establishing that proposition. Although the Court considered the argument highly doubtful, it could not say that it had no real prospect of success. A different finding about who created the documents might affect the assessment of credibility and require a retrial.
5. The alleged 1997 conversation had appeared in the appellant’s witness statement but had not been pleaded or addressed in cross-examination. The trial judge’s reasoning focused on the alleged 1995 conversation. It was not fanciful to argue that the result might have differed if the 1997 conversation had been considered.
6. Even if an agreement were established, the appellant would still have to prove detrimental reliance. Remaining in the home or relationship, without loss of an identifiable benefit or some other disadvantage showing that she would have been better off by leaving, was insufficient. If the agreement were established on appeal, she could argue detrimental reliance on the basis of the trial judge’s primary findings of fact.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 598, the renewed application for permission to appeal was refused on amended Grounds 1, 5 and 6. Limited permission was granted on amended Grounds 2, 3, 4 and 7.
• Central London Civil Justice Centre: HH Judge Gerald gave judgment on 4 November 2010 in the underlying dispute.