Lunat & Anor v Lunat & Anor

On an application for permission to appeal, an appellate court must not substitute its own view of the facts for that of the trial judge. The question is whether the proposed appeal has a real prospect of success, or whether another compelling reason justifies it, applying CPR 52.21. A trial judge may reason between interrelated factual questions in either direction, provided the evidence is evaluated as a whole and the burden of proof is not reversed. Appellate intervention in findings of fact, including evaluations of evidence and inferences, is exceptional. It requires error, serious procedural or other irregularity, or a conclusion unavailable on the evidence. The application was dismissed because the grounds sought to re-litigate factual findings which were adequately reasoned and available to the judge.

The defendants sought oral renewal of an application for permission to appeal from a County Court judgment concerning the beneficial ownership of a property. The trial judge had held that the property was beneficially owned 50% by the first claimant and 50% jointly by the defendants, rejecting both the claimant’s case that he was sole beneficial owner and the defendants’ case that they were the sole beneficial owners.

The proposed appeal challenged the trial judge’s approach to interrelated factual questions, the assessment of the source of the purchase funds, the relevance of evidence, the burden of proof, and the dismissal of the defendants’ counterclaim. Permission had previously been refused on paper. The central question was whether any ground had a real prospect of success or whether there was some other compelling reason for an appeal.

1. Permission dismissed. The defendants’ renewed application for permission to appeal was dismissed. The grounds sought to re-argue factual issues and did not disclose an arguable error of law, serious procedural or other irregularity, or any compelling reason for an appeal.
2. A trial judge may approach interrelated factual questions in either direction. The judge could use the finding that the claimant and defendants had agreed to share beneficial ownership as probative of who provided the purchase funds, while also considering the evidence about the funds, credibility, documents, surrounding circumstances and inherent probabilities. The essential requirement was that the evidence be evaluated as a whole. The approach did not reverse the burden of proof.
3. The reasoning was consistent with Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367, which was relied on for the requirement that findings be based on the evidence as a whole. The approach to credibility and inherent probabilities followed Armagas Ltd v Mundogas SA [1985] 1 Lloyd’s Rep 1 and Gow v Harker [2003] EWCA Civ 1160.
4. On an appeal, the court’s task is not to decide whether it would have adopted the same reasoning at first instance. Under CPR 52.21, and on a permission application, the issue is whether the appeal would have a real prospect of success or whether there is some other compelling reason for it to proceed.
5. Appellate caution applies not only to primary findings of fact but also to evaluations of facts and inferences. The principles stated in Fage UK Ltd & anor. v Chobani UK Ltd & anor. [2014] EWCA Civ 5 and Biogen v Medeva [1997] RPC 1 supported that conclusion. This was not an exceptional case warranting intervention.

• County Court at Central London: On 9 May 2019, HH Judge Johns QC determined the beneficial ownership of the property as 50% for the first claimant and 50% jointly for the defendants, rejecting the competing claims to sole beneficial ownership.
• High Court (Queen’s Bench Division): Permission to appeal was refused by the trial judge and later refused on paper by Mr Justice Julian Knowles on 7 March 2020. On oral renewal, Mr Justice Freedman dismissed the application on 7 May 2020.