Kamara v Builder Depot Ltd

An application to revive a struck-out appeal should not be granted where the proposed appeal has no prospect of success. An appeal bundle should be prepared without awaiting a delayed transcript: an agreed note of the lower court’s reasons may be used and later replaced by the transcript. A claim may be fundamentally dishonest even if the claimant did not personally create fraudulent documents. A claimant seeking to adduce fresh evidence must satisfy the applicable admissibility test, including showing that the evidence could not reasonably have been obtained for the trial.

The claimant appealed against a County Court judgment dismissing his personal injury claim under section 57 of the Criminal Justice and Courts Act 2015 on the ground of fundamental dishonesty. The proposed appeal was repeatedly delayed by failures to file the required appeal bundle and by difficulties obtaining transcripts. Saini J’s order provided that the appeal would be struck out unless the bundle was filed by 17 March 2020. It was not filed in compliance with that order.

The claimant applied for an extension of time and relief from the resulting strike-out. The central questions were whether relief should be granted and whether the proposed grounds of appeal had any realistic prospect of success.

1. Application dismissed. The application issued on 4 May 2020 was dismissed and the application for permission to appeal remained struck out.
2. Although the court considered the familiar principles governing relief from sanctions, it did not need to determine them in detail. Revoking the strike-out would serve no useful purpose because the proposed appeal had no prospect of success.
3. Practice Direction 52B required an appeal bundle to contain a transcript or other record of the lower court’s reasons. The appellant was not entitled to wait indefinitely for a transcript. Where necessary, an agreed note under paragraph 6.2(c) could be prepared and included in the bundle, with the transcript added later.
4. The proposed challenges to the trial judge’s factual findings, assessment of credibility, treatment of the claimant’s literacy and findings concerning the care invoices disclosed no arguable appellate error. The weight given to evidence was primarily a matter for the trial judge.
5. The court rejected the argument that fundamental dishonesty required an express finding that the claimant personally created the invoices. A claim for the invoiced sum could remain fundamentally dishonest if the invoices had been fabricated for the claimant, whether or not he acted alone.
6. The statement from Mr Muana was inadmissible under the first limb of the test in Ladd v Marshall [1954] 1 W.L.R. 1489. The trial judge had considered whether Mr Muana could have been called, and the statement did not explain his absence at trial.
7. The finding that the dishonest care claim went to the root or heart of the claim, and that no substantial injustice would result from dismissal, disclosed no arguable error. The consequences described in LOGOC v Sinfield [2018] EWHC 51 (QB) required more than the mere loss of damages, but that requirement was satisfied on the findings made.

• High Court (Queen’s Bench Division): The court dismissed the claimant’s application for relief from the strike-out of his proposed appeal and held that permission to appeal would have been refused.
• County Court at Central London: HHJ Baucher dismissed the personal injury claim on 1 May 2019 under section 57 of the Criminal Justice and Courts Act 2015, finding fundamental dishonesty.