Chisese v Eze

Permission to appeal should be refused where the proposed grounds have no real prospect of success and no other compelling reason supports permission. An appellate court should not interfere with trial findings based on witnesses whom the trial judge heard and saw unless there is a proper basis for doing so. Evidence available at trial cannot ordinarily be deployed later to establish unfairness or factual error. New material will not assist where it has not been properly advanced as evidence and could not materially affect the findings. An alleged mistake or fraud will not displace a limitation defence without evidence capable of undermining the reasoning under section 32 of the Limitation Act 1980.

Mr Chisese claimed that Prince Arthur Eze had breached an alleged oral agreement. The High Court dismissed the claim, finding that no agreement had been made and, alternatively, that the claim was out of time under the Limitation Act 1980, with no proper basis for extending time under section 32.

Patten LJ refused permission to appeal on the papers. On renewal, Mr Chisese relied on four appendices, including documents available at trial and a later response to a Freedom of Information Act request. The central issue was whether the material disclosed a real prospect of successfully challenging the factual findings or limitation decision, or provided another compelling reason for permission.

The renewed application for permission to appeal was dismissed.

1. Permission threshold. Patten LJ had correctly concluded that the proposed grounds had no real prospect of success. There was no other compelling reason to grant permission.
2. Findings of fact. The trial judge had heard and seen the witnesses and had carefully assessed the evidence. There was no proper basis on which the Court of Appeal could interfere with the finding that no oral agreement had been made.
3. Material available at trial. Appendices 1, 2 and 4 had been available before trial. They could have been deployed then. Their late reliance did not establish unfairness and did not create a realistic prospect of showing that the judge’s assessment of the evidence was wrong, whether individually or cumulatively.
4. New evidence. Appendix 3 had not been available at trial, but there was no witness statement or application to admit it as new evidence. In any event, it could not materially affect the factual findings concerning the alleged agreement.
5. Limitation. The alleged mistake or fraud concerning the proper party and the identity of Oranto Petroleum did not undermine the limitation reasoning under section 32 of the Limitation Act 1980. It therefore disclosed no real prospect of success on the limitation defence.

Sales LJ confirmed his agreement with Patten LJ’s reasons and dismissed the application.

1. Court of Appeal (Civil Division): Patten LJ refused permission to appeal on the papers. On renewal, Sales LJ dismissed the application in [2016] EWCA Civ 1240.
2. High Court, Chancery Division: Mr Andrew Hochhauser QC dismissed the claim, finding that no oral agreement had been made and that the claim was time-barred.