Bourne v Lloyds Tsb Bank Plc & Anor

Permission to appeal requires a real, rather than fanciful, prospect of success or another compelling reason. An appellate court will rarely interfere with trial findings based substantially on oral evidence, particularly where the judge has explained the assessment of credibility and evaluated the documentary evidence. A challenge to findings which generate no consequential order provides no practical basis for an appeal. Where a first-instance judge has carefully assessed whether a professional executor’s involvement creates a conflict, that evaluative conclusion will not be reopened absent legal or factual error.

Mr Jeremy Alfred Blacker sought renewed permission to appeal an order made by His Honour Judge McCahill QC in the High Court, Chancery Division, Bristol District Registry. The order replaced him as nominal personal representative with Lloyds Bank as sole executor of his father’s estate and directed the sale of two properties. The proposed appeal challenged the appointment, an alleged conflict of interest, findings concerning an alleged gift of one property, and background findings about jointly owned properties. Permission had previously been refused on paper by Lewison LJ. The central issue was whether any proposed ground had a real prospect of success or disclosed another compelling reason for permission.

Renewed application refused. McCombe LJ applied the requirement that the applicant show a real, rather than fanciful, prospect of success or another compelling reason for permission.

1. The challenge to Lloyds Bank’s appointment disclosed no arguable error. The High Court judge had balanced the relevant factors, including the bank’s longstanding administration of the estate, economy and efficiency, and the alleged conflict arising from separate proceedings. His conclusion that there was no conflict was based on a thorough assessment of the facts and the parties’ conduct. It was a conclusion he was entitled to reach.
2. The challenge concerning number 48 also had no real prospect of success. The judge found that no deed or oral inter vivos gift had been made. The contemporary documents supported that conclusion, the applicant’s oral evidence was rejected, and the rental arrangement was treated as a permission lasting only during the deceased’s lifetime. These were findings substantially based on the trial judge’s assessment of witnesses and documentary evidence. There was no error of fact or law warranting appellate intervention.
3. The proposed challenge to findings concerning properties jointly owned with Rosa Jones could not justify permission. The High Court had made no order affecting those properties. A challenge to factual findings is material where they give rise to consequential orders affecting the parties’ interests. The legal analysis was also correct: land held by more than one person is held at law by legal joint tenancy, while beneficial ownership may be held in equity as tenants in common.

All three grounds therefore lacked a real prospect of success, and the renewed application was refused.

• Court of Appeal (Civil Division): On the renewed application, McCombe LJ refused permission to appeal in [2015] EWCA Civ 881.
• Court of Appeal (Civil Division): Lewison LJ had previously refused permission on the papers on 17 December 2014.
• High Court, Chancery Division, Bristol District Registry: His Honour Judge McCahill QC made an order dated 15 August 2014, sealed on 2 September 2014, appointing Lloyds Bank as sole executor and directing the sale of two estate properties.