Silver Fern Microlights Ltd v Jones & Ors

On a renewed application for permission to appeal, permission should be refused where the proposed appeal has no real prospect of success. The Court of Appeal will be very slow to interfere with careful findings of fact based on evidence heard by the trial judge.

A constructive eviction issue may be determined without deciding whether the occupier held a lease or a licence where the primary factual findings do not depend on that legal characterisation. Arguments not advanced below, including a new claim based on quiet enjoyment, are generally too late on appeal.

The claimant operated an aviation business from premises at an airfield operated by the defendants. The County Court at Sheffield dismissed claims alleging unlawful eviction from a lean-to and seeking payment for consultancy services.

The claimant renewed an application for permission to appeal. It argued that the trial judge had failed to determine whether the occupation was under a lease or licence, had wrongly rejected constructive eviction, and had failed to address obligations concerning repairs. It also challenged the findings on the consultancy claim. The central issue was whether any proposed appeal had a real prospect of success.

1. Constructive eviction. The trial judge had found that the claimant vacated the premises consensually, that the defendants initially intended to repair them, and that a later survey concluded that the structure was unsafe and that demolition was the only feasible option. The defendants offered the claimant the opportunity to return in the existing condition, but it declined. Those were findings of fact based on the evidence.
2. The Court of Appeal agreed that there was no realistic prospect of successfully challenging the conclusion that the conduct did not amount to constructive eviction. The precise legal character of the occupation, whether lease or licence, did not affect the primary factual findings and therefore did not need to be determined. The failure to undertake repairs might have supported a claim for specific performance, but that was not the claim being considered.
3. The claim was not one for breach of a repairing obligation or dilapidations. Arguments concerning breach of the warranty of quiet enjoyment had not been advanced below and were too late to raise on appeal. The court was not dealing with an application to commit the defendants for breach of their undertaking concerning structural repairs.
4. Consultancy services. The trial judge had found that there was no agreement for consultancy services and that the invoice relied upon was false. Those findings were based on careful consideration of the evidence, and the Court of Appeal would be very slow to interfere with them.
5. The criteria for permission to appeal were not met. The renewed application was refused, and the related application for a stay of execution necessarily fell with it.

• Court of Appeal (Civil Division): On 2 March 2016, Sir Stephen Richards refused the renewed application for permission to appeal. The related stay application fell with that refusal.
• Court of Appeal (Civil Division): Moore-Bick LJ had previously refused permission on the papers.
• County Court at Sheffield: His Honour Judge Robinson dismissed the claims, including the claims concerning alleged unlawful eviction and consultancy services, in judgment dated 12 December 2014.