Patrick v McKinley

Permission to appeal may be granted where there is an arguable case that a trial judge failed properly to evaluate material evidence, reached conclusions inconsistent with that evidence, or made findings that were not open on the evidence. The appellate court remains slow to interfere with findings of primary fact, evaluations and inferences, and will do so only where compelled. Permission should be confined to the particular grounds that warrant consideration by the full court. It does not reopen every issue determined at trial.

The claimant sought permission to appeal from the judgment of His Honour Judge Gerald, given on 11 June 2014, and the consequential order dated 1 July 2014 dismissing his claim to a beneficial interest in, or the proceeds of sale of, three properties owned at various times by the respondent. The claim alleged promises, reliance and a property-development joint venture or partnership, together with an alternative quantum meruit claim. The trial judge rejected the claimant’s evidence and found that he had been employed and paid for his work. Permission had initially been considered on paper and was referred by Sir Timothy Lloyd to an oral hearing. The central question was whether the proposed grounds disclosed a real prospect of showing material error in the trial judge’s factual assessment and treatment of the evidence.

1. Permission granted. The application disclosed arguable grounds requiring consideration by the full court. These included the judge’s treatment of the alleged removal or destruction of hard drives and documents, the drawing of adverse inferences, the characterisation of the parties’ relationship and living arrangements, findings concerning violence and an abusive relationship, the use of evidence from custody, bankruptcy and benefit proceedings, and related findings concerning credibility, influence over evidence and remuneration.
2. The appellate court will not ordinarily interfere with a trial judge’s findings of fact. That restraint applies to findings of primary fact, evaluations of those facts and inferences drawn from them. Nevertheless, the proposed arguments were sufficiently arguable because the judge might have failed properly to take account of material evidence, reached conclusions inconsistent with documents and other material, or made a finding that was not open to him on the evidence.
3. The court did not determine the merits of those arguments. In particular, it acknowledged the trial judge’s opportunity to assess conflicting evidence and the seriousness of the allegations, while concluding that the identified issues were closely related and should be considered together on appeal.
4. Permission was limited to the particular grounds and points identified in the judgment. It was not intended to permit the claimant to reopen every issue decided at trial.

• High Court of Justice, Chancery Division: His Honour Judge Gerald rejected the claim in a judgment given on 11 June 2014 and made a consequential dismissal order dated 1 July 2014.
• Court of Appeal (Civil Division): Permission to appeal was considered on paper by Sir Timothy Lloyd and referred to an oral hearing. Lord Justice Kitchin granted permission on the specified grounds, confined to the issues identified in the judgment.