Honeyghan v Campbell

On a renewed application for permission to appeal, the Court of Appeal will not reopen findings of fact merely because the evidence was sparse, disorganised or disputed. Where trial witnesses were seen and heard, the appellant bears a heavy burden and must show that the findings were not reasonably open on the evidence or that the trial was unfair. A party debarred from defending a counterclaim may test opposing evidence in cross-examination, but may not advance a positive case. Procedural interruptions or an informal judicial manner do not establish unfairness unless they deprived the party of a proper opportunity to test the evidence. A point not raised at trial, despite an opportunity to raise it, ordinarily cannot support permission to appeal.

The claimant had brought proceedings seeking payment of an agreed £7,500 settlement for injuries allegedly caused by an assault. That claim was withdrawn or struck out. The defendant’s counterclaim concerned rents allegedly collected by the claimant from his property and costs incurred in re-entering the premises. At trial, the Birmingham County Court gave judgment for the defendant on the counterclaim in the sum of £6,569, with costs.

The claimant sought permission to appeal, challenging the alleged debarring order, the conduct and fairness of the trial, the admission of evidence, and the sufficiency and reliability of the evidence supporting the factual findings. Permission was initially refused on the papers. The central issues on renewal were whether time should be extended, whether the trial was unfair, and whether the factual findings were reasonably open to the trial judge.

Extension of time and permission. The court accepted that an appellant’s notice had apparently been lodged within time but at the wrong court, following an understandable procedural error. Time was therefore extended. Permission to appeal was nevertheless refused.

1. The judge was entitled to determine the counterclaim without giving credit for the admitted settlement claim. That claim had been withdrawn or struck out, and neither the claimant nor her McKenzie friend had asked the judge to take it into account. The claimant might have had another route to pursue the agreed sum, but the counterclaim judgment was not thereby erroneous.
2. The claimant had been told that she was debarred from defending the counterclaim. Although the Court of Appeal could not independently verify the relevant order, the point had not been raised at trial, despite the claimant having an opportunity to do so. It therefore could not constitute a valid ground of appeal.
3. A party subject to a debarring order may still test the opposing evidence by cross-examination, but may not advance a positive case. The judge had afforded the claimant that limited opportunity.
4. The judge’s interruptions, informal expressions and references to Judge Judy and her playpen were regrettable, but the transcript showed that she was attempting to explain the procedure and keep the evidence within proper limits. They had not deprived the claimant of a fair trial.
5. The trial judge had seen and heard the witnesses and was entitled to make findings on the balance of probabilities, notwithstanding limited independent recollection and little documentary evidence. An appellant challenging such findings faces a heavy burden. There was no realistic prospect of showing that the findings were unavailable to the judge or that the trial had been unfair.

1. Court of Appeal (Civil Division): Permission to appeal was initially refused on the papers by Kitchin LJ. On renewal, time was extended but permission to appeal was refused: [2015] EWCA Civ 633.
2. Birmingham County Court: District Judge Ingram made an order on 30 September 2013 giving judgment for the defendant on his counterclaim in the sum of £6,569, with costs.