Bulathwela v Thomas & Anor

Permission to appeal may be granted on a limited ground where there is a real prospect that the lower court failed to deal adequately with material evidence. Granting permission expresses no view on the merits of the proposed appeal.

Fresh evidence will not ordinarily be admitted where it consists of unattributed assertions or legal conclusions, lacks apparent credibility or probable material influence on the result, and could have been available at the original hearing without an adequate explanation for its omission.

The appellant sought renewed permission to appeal a decision of District Judge Hart in the County Court at Central London. The District Judge had found that a property registered solely in the bankrupt wife’s name belonged beneficially to her alone.

The proposed appeal challenged the evaluation of evidence concerning the deposit, mortgage payments and a charge executed by both spouses in favour of the Legal Services Commission. The appellant also sought to rely on a witness statement from his daughter as fresh evidence. The central issues were whether the proposed appeal had a realistic prospect of success and whether the new evidence satisfied the criteria in Ladd v Marshall [1954] 1 WLR 1489.

1. Permission to appeal. Permission was granted by a narrow margin on the limited ground that an appeal court might conclude that the District Judge should have dealt more fully with the evidence of Mr and Mrs Bulathwela and the implications of the Legal Services Commission charge. The grant of permission did not express any view on the merits beyond the existence of a real prospect of success.
2. Fresh evidence. The proposed witness statement from the appellant’s daughter did not satisfy the second and third criteria in Ladd v Marshall [1954] 1 WLR 1489. It comprised unattributed assertions and statements of legal conclusions. It was not shown to be apparently credible or likely to have an important influence on the result. There was also no explanation for failing to rely on evidence that could plainly have been available at the original hearing.
3. The witness statement was therefore not admitted for reliance on the appeal. Any further application to rely on additional evidence was to be made within a limited timescale under directions, so that it could be determined before or in an orderly manner at the appeal hearing.

• High Court (Chancery Division): District Judge Hart’s decision in the County Court at Central London was challenged by a renewed application for permission to appeal. Permission was granted on a limited ground, while the proposed fresh evidence was refused.