Balogun v Boyes Sutton & Perry

Permission to appeal should be granted where the proposed grounds are properly arguable and there is a realistic prospect that the full court may find an error in the first-instance decision. Supportive cross-examination evidence need not be conclusive at the permission stage. An arguable failure to secure intended rights under lease documentation, or to verify planning approval required for flues and ducting, may justify permission to appeal.

The claimant sought renewed permission to appeal the judgment of Mr Michael Bowes QC dated 17 February 2015. His claim concerned advice and drafting in connection with a proposed 15-year commercial underlease of a unit intended for restaurant use.

The first-instance judge rejected complaints concerning advice about ducting through a ventilation shaft and held that the underlease granted sufficiently broad rights to use the shaft. The claimant did not pursue an appeal on the first factual issue. He sought permission on two alternative grounds: whether the lease documentation conferred a right to use the shaft, and whether the solicitor should have obtained confirmation that planning approval required by condition 4 had been given.

1. Permission granted. Permission to appeal was granted on both proposed grounds.
2. The contractual-construction ground was arguable. The ventilation shaft lay outside the claimant’s demise and within neighbouring property. The underlease granted a right to use service media belonging to the landlord, while the head lease excluded relevant airspace and limited the demise to conduits and plant within and exclusively serving the commercial units. The combined effect arguably failed to confer a right to use the shaft, raising an arguable failure of due care in drafting.
3. The planning ground was also arguable. Condition 4 required cooking fumes to be extracted through a flue, required ventilation and external equipment details to be approved in writing before commencement, and required installation in accordance with the approved details. It was arguable that the solicitor should have sought confirmation that the necessary approval had been given.
4. The solicitor’s cross-examination evidence supported the proposed grounds to some extent. Although it was not conclusive, there was a realistic prospect that the full court might find that the first-instance judge had erred.

• Court of Appeal (Civil Division): renewed application for permission to appeal granted on both grounds from the judgment of Mr Michael Bowes QC dated 17 February 2015.