Mayes v Knowles

Permission to appeal requires a realistic prospect of success. The Court of Appeal does not rehear evidence or grant permission merely because an applicant invites it to prefer one witness’s account over another. In a challenge to a gift on grounds of undue influence, an inference arises only where the transaction cannot reasonably be explained by friendship or the parties’ relationship. The burden then shifts to the recipient to rebut the inference. A close relationship, considered with the parties’ financial circumstances, may provide an ample explanation for the gift. Allegations of trickery or non est factum will not establish an appealable issue where they are contradicted by contemporaneous documents and the trial judge’s factual findings.

The applicant sought renewed permission to appeal from findings made by His Honour Judge O’Brien in the Norwich County Court concerning a deed of gift relating to property. She challenged the judge’s assessment of her financial circumstances, alleged undue influence, and maintained that the transaction involved trickery or non est factum. She also raised complaints about the conduct of the trial. Earlier grounds had been rejected by Lewison LJ. On renewal, the central questions were whether the factual findings disclosed a realistic prospect of success and whether the evidence could support an inference of undue influence or the other proposed grounds.

1. Permission refused. The renewed application was dismissed. The court removed the stay and refused permission to appeal. Sympathy for the applicant’s position could not justify permission.
2. Permission could be granted only if the proposed appeal had a realistic prospect of success. The Court of Appeal does not rehear the evidence and was not in the same position as the trial judge to hear and sift it. A challenge based only on the suggestion that the judge should have believed one party rather than another could not succeed.
3. The applicant’s account of her resources was inconsistent with the trial judge’s findings. Those findings included the payment made for work on Waterbank Road, the bridging loan secured on that property, the absence of buyers at the suggested value, and its sale to the claimant’s brother for £65,000 in circumstances connected with the bank lending. The factual findings therefore provided no realistic basis for appellate intervention.
4. For undue influence, the applicant had to show that the gift could not reasonably be explained by friendship or the parties’ relationship. If that threshold were met, the burden would fall on the recipient to rebut the inference. This approach was stated in Allcard v Skinner [1887] 36 Ch.D 145 at p 185 and espoused by Lord Nicholls in Royal Bank of Scotland v Etridge (No.2) [2001] 3 WLR 1021 at [23]-[29]. The close relationship, together with the financial circumstances, amply explained the deed of gift, so the threshold was not met.
5. The allegations of trickery and non est factum could not stand in the light of the Barclays letter and the solicitors’ letter. The same factual conclusions also answered the procedural complaints about the trial.

• Court of Appeal (Civil Division): Moses LJ heard a renewed application for permission to appeal. The application was dismissed, permission was refused, and the stay was removed.
• Norwich County Court: His Honour Judge O’Brien made factual findings concerning the parties’ financial circumstances, the deed of gift and the surrounding evidence. Those findings were challenged in the renewed application.