Safeera Akram v Academy Doors and Windows Ltd

Permission to appeal requires a realistic, rather than fanciful, prospect of success, or another compelling reason for the appeal to be heard. A challenge to findings of fact must show that the findings were unsupported by the evidence or were ones which no reasonable judge could have made. An appellate court will generally defer to a trial judge’s findings based on witness credibility. Contracting-party questions are determined objectively from the relevant circumstances, considered cumulatively. For indemnity costs, proportionality to the matters in issue is disregarded, doubts about reasonableness are resolved in favour of the receiving party, and proportionality to the sums in issue is only one relevant factor.

The defendants sought renewed permission to appeal from the judgment of HHJ Hellman QC following a construction dispute concerning extension, refurbishment and window works at a residential property. The judge below found that the second defendant contracted personally for the main building works and that the first defendant contracted for the windows. He awarded damages against both defendants, dismissed the counterclaim, and made Part 36 and costs orders.

The proposed appeal challenged the identity of the contracting parties, VAT, the inclusion of materials in the contract price, responsibility for defective works, causation, damages, the counterclaim and the costs order. The central questions were whether any arguable error met the permission threshold and whether the trial judge’s factual findings were open to him.

1. Permission refused. Under CPR 52.6(1)(a), permission requires a real, rather than fanciful, prospect of success. The alternative ground is some other compelling reason for the appeal to be heard.
2. Where an appeal challenges factual findings, the applicant must show a real prospect that the findings were unsupported by the evidence or that no reasonable judge could have reached them. Findings depending on witness credibility will generally attract appellate deference because the trial judge saw and heard the witnesses. The authorities of The Mayor and Burgesses of the Haringey LBC v Ahmed & Ahmed, Cook v Thomas and Re: B supported this approach.
3. The trial judge was entitled to find that the second defendant was the contracting party for the building works. The objective analysis took account of all the circumstances, including the claimant’s dealings with him, the evidence concerning the companies, invoicing, payment in cash and the defendants’ previous business activities. The VAT discussions did not compel a different conclusion. The judge had not pierced the corporate veil.
4. The findings that the building-works price included materials, that the defects were attributable to the second defendant, and that the counterclaim failed were factual conclusions open to the trial judge. The later involvement of other builders did not provide a sufficient basis for appellate intervention. Nor did the challenges concerning the skylight, discomfort damages or the alleged role of Mr Popat.
5. As to costs, the court adopted the reasons given when permission had previously been refused. Under CPR 44.3, proportionality to the matters in issue is disregarded for costs assessed on the indemnity basis; doubts about reasonableness are resolved in favour of the receiving party; and proportionality to the sums in issue is only one factor in CPR 44.3(5). The costs challenge therefore disclosed no real prospect of success.

The judgment concerned a renewed application for permission to appeal the first-instance judgment and subsequent costs orders of HHJ Hellman QC. Permission had previously been refused on the papers by Sir Stephen Stewart, and a later application to re-impose a stay had also been refused. Mr Justice Constable refused permission.