Mengiste v Endowment Fund for the Rehabilitation of Tigray & Ors

Permission to appeal requires a properly formulated challenge showing a real prospect of success. A bare assertion that the first-instance judge was wrong does not suffice, particularly where the proposed appeal merely re-runs factual evidence. Procedural complaints must identify the alleged error and provide a credible basis for contending that the hearing was unfair. A stay or adjournment should not ordinarily be granted merely because fresh proceedings or an appeal may later occur. The court may continue determining first-instance issues unless the Court of Appeal grants a stay or other compelling circumstances justify postponement.

The claimants sought permission to appeal after the court had comprehensively dismissed their claim, while staying the proceedings and preserving a possible application to revive them if later developments in Ethiopia demonstrated that a fair hearing could not be obtained there. They relied on alleged errors in the factual findings and procedural irregularities, including the treatment of expert evidence and the length and conduct of the trial.

The defendants also opposed an adjournment of a wasted-costs application pending possible proceedings in Ethiopia or an appeal. The court therefore considered whether the proposed appeal had a real prospect of success and whether those possible future steps justified delaying the remaining first-instance issues.

1. Permission to appeal. The claimants’ grounds did not identify any properly formulated error in the factual findings or legal analysis. Merely asserting that the judge was wrong was insufficient. An exceptional basis is required before an appellate court will interfere with factual findings, and the claimants failed to show any real prospect of success.
2. The allegation that the claimants might not receive a fair hearing in Ethiopia rested on a misunderstanding of the earlier judgment. The court had not held that failure to obtain relief in Ethiopia would itself establish unfairness. The question depended on how the Ethiopian courts dealt with the proposed applications, including the application under Article 6. The claimants had not shown cogent evidence of a real prospect of an unfair hearing.
3. The procedural complaints were also inadequately particularised. The claimants had benefited from the arrangements made for expert evidence, including the opportunity to reconstruct and rewrite their expert evidence. No credible basis was advanced for alleging that those arrangements constituted a procedural irregularity or denied a fair hearing.
4. Permission to appeal was refused. If the claimants renewed the application in the Court of Appeal, they were directed to provide that court with a transcript of the permission hearing.
5. Adjournment of wasted-costs application. The possibility of later proceedings in Ethiopia or an appeal did not justify postponing the application. Any application to lift the stay would be a fresh application based on fresh evidence. The court considered that the remaining first-instance issues should be determined expeditiously and would not adjourn them absent a compelling reason, such as a stay granted by the Court of Appeal.

The judgment records that the claimants could renew their application for permission to appeal in the Court of Appeal. No appellate decision is stated in the judgment.