Christodoulides v Marcou

Permission to appeal may be refused where the substantive issue has become academic and success could affect only an earlier costs order. The court should assess how certain it is that success would improve the appellant’s costs position. The more uncertain that consequence, the less likely the court should entertain the appeal. Where costs are the only possible effect, the court should exercise particular caution. In a presumed undue influence case, whether a transaction calls for an explanation normally depends on the specific facts and all the circumstances, not merely its objective features. Rebuttal of the presumption is likewise determined by all the circumstances; independent legal advice is not invariably required.

The appellant challenged findings made after a ten-day trial in the County Court at Central London concerning her late mother’s will and a transfer of an interest in Hazelmead. Permission to appeal the will decision had already been refused in [2017] EWHC 2632 (Ch).

In the transfer proceedings, the appellant alleged presumed undue influence. The beneficial ownership of Hazelmead would be the same whether the transfer was valid or invalid, because the property would ultimately pass equally to the sisters. The only identified practical consequence of a successful appeal concerned the earlier costs order. The issue was whether permission should nevertheless be granted.

1. Permission to appeal was refused. The court held that the appeal had no real prospect of success and that the costs-only consequences required particular caution.

2. The court derived four relevant principles from the authorities on academic appeals. An appeal may cease to be academic if success on the substantive issue could reverse an adverse costs order or secure costs for the appellant. The court must assess how certain that improvement would be. Increasing uncertainty makes it less appropriate to entertain the appeal. Where costs are the only possible consequence, the court should be very cautious before allowing the appeal to proceed.

3. The proposed appeal concerned presumed undue influence. Although the Recorder had found a relationship of trust and confidence, he had held that the transfer did not call for an explanation. That issue normally requires consideration of the specific facts and all the circumstances, rather than an assessment confined to objective features. The ultimate question is whether the circumstances admit of no explanation other than undue influence.

4. Even if the appellant succeeded on that issue, the Recorder’s findings would have been highly relevant to rebuttal of the presumption. Independent legal advice was not invariably necessary, because rebuttal depended on all the circumstances. Alternatively, the matter might require remission for further findings, which would be inappropriate where the only possible effect was on costs. These possibilities made success unlikely.

5. The court therefore refused permission to appeal in the transfer proceedings.

The judgment concerned an application for permission to appeal from findings made by Mr Recorder Lawrence Cohen QC after a ten-day trial in the County Court at Central London on 10 February 2017. Permission to appeal the separate will decision had previously been refused by the High Court in [2017] EWHC 2632 (Ch). Permission to appeal in the transfer proceedings was refused by the present court.