Kingley Developments Ltd v L Brundenell & E L Elcock

Permission to appeal against factual findings requires a real prospect of success, meaning more than a fanciful prospect, or another compelling reason. The appellate court must respect the trial judge’s advantages and will generally interfere only for clear error or a procedural error requiring a retrial. A judge need not address every submission if the judgment shows that the relevant evidence was weighed. Decisions refusing late evidence are discretionary and warrant permission only for clear error or injustice. A speculative request to amend grounds and adduce unidentified fresh evidence will not be adjourned in principle; any later application must be properly focused and satisfy the applicable rules.

The claimant obtained a possession order in the Central London County Court after the defendants’ alleged defences of forgery and non est factum failed. His Honour Judge Dight found that the defendants had signed the transfer and intended to sell the property. Kitchin LJ refused permission to appeal on paper. The defendants renewed the application orally, alleging errors in the treatment of expert and witness evidence, related fraud evidence and late evidence. They also sought to amend the grounds and introduce unspecified material said potentially to emerge from a police investigation. The central questions were whether any ground had a real prospect of success and whether the fresh-evidence application could properly be entertained at that stage.

1. Permission test. The governing question was whether the proposed appeal had a real, rather than fanciful, prospect of success, or whether there was some other compelling reason. The application was advanced solely on the real-prospect limb. Findings of fact are not generally overturned unless the trial judge was clearly wrong, taking account of the judge’s advantages in seeing and hearing the witnesses, or procedural error makes a retrial necessary.
2. Assessment of evidence. It was wrong to infer that the judge’s reasoning process necessarily mirrored the sequential order of the written judgment. A trial judge is not required to address every submission on reliability, including every point arising from competing expert and non-expert evidence, provided the judgment demonstrates that the relevant evidence and competing considerations were weighed. The challenges concerning the alleged forgery of the contract and the transfer, and the treatment of the expert evidence, nevertheless just passed the permission threshold when considered together.
3. Related fraud evidence. The trial judge was entitled to distinguish evidence concerning associated frauds from the central question whether the defendants intended to sell the property. However, it was arguable that the evidence, viewed cumulatively, had greater relevance to the non est factum issue than the judge allowed. Permission was therefore granted on this aspect.
4. Late evidence. Decisions to exclude late evidence were discretionary case-management decisions. Permission required a clear error or injustice. Fairness included fairness to the innocent purchaser, and the judge was entitled to assess the rejected material as insufficiently central. Permission was refused on that ground.
5. Orders. Permission to appeal was granted on all grounds except grounds 4 and 6. The stay of the possession order was extended until conclusion of the full appeal. The speculative application to amend the grounds and adduce fresh evidence was refused. Any later application would require identified material, a properly formulated ground and sufficient compliance with the applicable requirements, broadly reflecting Ladd v Marshall.

• Court of Appeal (Civil Division): On the renewed oral application, Briggs LJ granted permission to appeal on all grounds except grounds 4 and 6, extended the stay of the possession order, and refused the speculative fresh-evidence application.
• Central London County Court: On 28 May 2014, His Honour Judge Dight made a possession order after finding that the defendants had signed the transfer and intended to sell the property.
• Earlier Court of Appeal decision: Kitchin LJ refused permission on the papers on 26 January 2015.