Connolly v Landy & Ors

Permission to appeal requires an arguable ground with a realistic prospect of success. Appellate courts should respect first-instance case-management decisions unless shown to be plainly wrong. Evidence omitted from a trial bundle will not justify permission where, even if admitted, it could not realistically affect the result.

A monetary judgment debt does not, without more, create an equitable interest or equitable charge over the debtor’s property. A criminal conviction is binding in civil proceedings unless the convicted party discharges the high burden imposed by Civil Evidence Act 1968, section 11. Extended civil restraint orders may properly be made where applications are totally without merit and the applicant is associated with the relevant abusive litigation.

There were six renewed applications for permission to appeal against orders made in the County Court at Central London concerning the estate of Frederick Joseph Lewis and the ownership and proposed sale of 202 Drakefell Road.

The challenged orders concerned case management at a pre-trial review, the dismissal of Harvil Connolly’s claim and a finding that an alleged trust was sham and unenforceable, and a later order dismissing applications to reopen earlier proceedings, ordering sale of the property, and making extended civil restraint orders.

The applicants, Harvil Connolly and Georgia Opal Landy, appeared in person. The central issues were whether the case-management decisions, the trial conclusions, the refusal to reopen the earlier judgment, the order for sale, and the restraint orders disclosed any realistic ground of appeal.

1. Outcome. All six applications for permission to appeal were dismissed. The applications against the 2019 Order were declared totally without merit. No such declaration was made in relation to the applications concerning the pre-trial review and trial orders because of confusion surrounding the omission of a witness statement.
2. The refusal to adjourn the trial and the other pre-trial decisions were case-management decisions. The judge had applied the approach in Denton v White. The late evidence did not introduce facts requiring an adjournment, and the applicants had sufficient time to obtain advice. There was no realistic prospect of successfully challenging the exercise of discretion.
3. The omission of Shelley Gordon’s witness statement from the trial bundle was an error. The statement was relevant and had been served before the pre-trial review. Nevertheless, even assuming that it had been admitted and that Ms Gordon had attended for cross-examination, the abundant evidence of sham intention, including inconsistent statements made in confiscation proceedings, meant that the trial result could not realistically have been different.
4. The alleged trust was also ineffective because its revocable terms and the trustee’s purported right to secure expenditure gave the beneficiaries no secure beneficial interests. In addition, the trust was not properly constituted because the legal estate had not been transferred.
5. Ms Landy’s conviction was binding in the civil proceedings under section 11 of the Civil Evidence Act 1968, subject to the high burden of showing that it was incorrect. The application to set aside the earlier order was also substantially out of time and failed to satisfy Civil Procedure Rules 1998, rule 39.3.
6. The order for sale was properly made. The confiscation order and the charging order in favour of B & D Lewis were separate matters, and the evidence did not show that the creditors would be paid twice. A judgment debt did not itself create an equitable interest in the property. Hughmans Solicitors v Central Stream Services Ltd was authority against the applicants’ argument.
7. The extended civil restraint orders were justified. In relation to Mr Connolly, the court applied the reasoning in CFC 26 LTD v Brown Shipley Co Ltd concerning association with totally without merit applications.

• High Court (Chancery Division): Arnold J refused five applications for permission on the papers, and Ouseley J refused one. The present court heard renewed applications and dismissed all six.
• County Court at Central London: The challenged orders included the pre-trial review order, the trial order, and the 2019 order concerning reopening, sale and extended civil restraint orders.