Swampillai v Joseph

Permission to appeal will be refused where the proposed grounds disclose neither a real prospect of success nor another compelling reason for an appeal. In a factual dispute, the trial judge is entitled to weigh oral and documentary evidence as a whole and decide which account is more probable. An appellate court should not reweigh that evidence or second-guess findings based on witness credibility where no discernible error of law is shown. A complaint that evidence was given insufficient weight ordinarily provides no proper basis for appeal when the evidence was taken into account. An extempore judgment is not open to criticism merely because it is less comprehensive than a reserved judgment. Material arising in mediation is ordinarily inadmissible at trial.

The application arose from an order of His Honour Judge Powles QC in the Brentford County Court on 3 April 2014. The judge declared that Mr Joseph held 10 Middleton Avenue, Greenford, for himself and Miss Swampillai in equal beneficial shares. He rejected Mr Joseph’s claim to a beneficial interest in 25 Middleton Avenue, registered in Miss Swampillai’s name.

The renewed application challenged the judge’s approach to the burden of proof, exclusion of late documentary evidence, treatment of a promissory note and other evidence concerning an alleged loan and proprietary estoppel. The central question was whether any ground disclosed a real prospect of success or another compelling reason for an appeal.

Application refused. The Court of Appeal considered each proposed ground and concluded that neither limb of the permission test was satisfied.

1. The judge’s statement that factual disputes should, where possible, be resolved by balancing the evidence rather than relying on the burden of proof was conventional and correct.
2. There was no evidential basis for concluding that the judge had wrongly exercised his case-management powers by excluding late documents. The documents had not been shown to be important, and the complaint did not disclose a real prospect of success.
3. The judge had taken the promissory note into account. Although it was facially consistent with Mr Joseph’s case, it was undated and was not conclusive. The judge was entitled to prefer Miss Swampillai’s oral evidence when the evidence was considered as a whole. An argument that a judge gave insufficient weight to evidence is ordinarily unsuitable for appeal where the evidence was considered, rather than ignored.
4. The remaining complaints concerned the weight given to documents and evidence about the alleged loan, the purchase arrangements and proprietary estoppel. The judge made no discernible error of law. The Court of Appeal could not properly second-guess his factual assessment without hearing the witnesses.
5. A mediator’s note could not assist the application. Mediation, however informal, ordinarily takes place on the basis that matters said during it will not be referred to at trial.
6. The extempore nature of the trial judgment was no ground for criticism. An immediate judgment may be less full or precise than a reserved judgment without being defective.

The respondent’s attendance costs were refused. Attendance had not been directed, and the matters relied upon could have been communicated more economically.

• Court of Appeal (Civil Division): On a renewed oral application for permission to appeal, the court refused permission, holding that no ground showed a real prospect of success or another compelling reason.
• Brentford County Court: On 3 April 2014, His Honour Judge Powles QC declared equal beneficial ownership of 10 Middleton Avenue and rejected Mr Joseph’s claim to a beneficial interest in 25 Middleton Avenue.