Tickford Estates v Brione

Permission to appeal should be refused where the proposed appeal has no real prospect of success. The Court of Appeal generally accepts factual findings made by the trial judge, who heard the witnesses and reviewed the documents. It is difficult to overturn those findings on the trial evidence. Procedural or factual criticisms do not ordinarily justify appellate intervention. Where the trial judge correctly directed the burden of proof and reached findings supported by the evidence, a renewed application based principally on disagreement with those findings should not proceed.

Tickford Estates v Brione arose from a claim for £6,000 in arrears under a licence to occupy commercial premises. After a three-day hearing, the County Court gave judgment against Mr Brione and rejected his claim for repayment of a deposit. He sought permission to appeal, relying on alleged breaches of natural justice, errors concerning the burden of proof, cash-payment practices, inadequate record-keeping, an alleged verbal agreement and other factual and procedural matters.

Lewison LJ refused permission on paper. On the renewed application, Mr Brione did not attend despite having been notified, and the Court proceeded on the basis of his skeleton argument. The central issue was whether the proposed appeal had a real prospect of success.

1. The renewed application for permission to appeal was refused. The application was heard in Mr Brione’s absence because he had been notified of the hearing and informed that it would proceed without him.
2. The proposed grounds were principally factual and procedural. The trial judge was the tribunal responsible for deciding the facts because she heard the evidence and saw the documents. The Court of Appeal had not heard the witnesses and was not in a position to re-decide the facts. Findings made at trial are therefore generally accepted on appeal, and an appellant faces considerable difficulty in persuading the appellate court to overturn them on the trial evidence.
3. The only remotely legal issue concerned the burden of proof. The trial judge had directed herself correctly on that issue. She was entitled to rely on the contemporaneous document concerning the deposit and to accept the claimant’s evidence that the rent had not been paid, having considered the evidence as a whole.
4. There was no real prospect that the Court of Appeal would overturn the findings of fact or otherwise allow the proposed appeal. Granting permission would waste time and would not benefit the applicant, since an unsuccessful appeal could leave him liable for additional respondent’s costs. The usual rule that costs follow the event applied.

1. Court of Appeal (Civil Division): On the renewed application, permission to appeal was refused.
2. Court of Appeal (Civil Division): Lewison LJ refused permission on paper on 1 November 2012.
3. Willesden County Court: On 22 March 2012, Mrs Recorder Read gave judgment for £6,000 in arrears under the licence to occupy and rejected the claim for return of the alleged deposit.