Simon Burke v Khan & Anor

An appeal is confined to the issues for which permission has been granted. Permission will not ordinarily be extended at a very late stage where the proposed ground would substantially alter the basis of the appeal, particularly where the permission order expressly excludes the issue.

The appeal arose from bankruptcy orders made against the appellants for non-payment of costs awarded in earlier landlord and tenant proceedings. Permission was granted to appeal against the bankruptcy orders and the costs provision in an earlier order, but expressly excluded the declarations and the finding that the appellants had acted unreasonably in withholding consent.

During the hearing, the appellants sought permission to challenge the excluded finding. The central issue was whether the scope of the appeal should be enlarged.

1. Scope of appeal. The appeal was confined to the question whether the costs order made on 12 September 2017 was wrong. Permission had not been granted to challenge the declarations or the finding that the appellants had acted unreasonably in delaying and withholding consent.
2. Application to extend permission. The application was made substantially out of time. Granting it would have changed the whole basis of the appeal by introducing the withholding of the licence and related issues. The judge also took account of the fact that the permission judge had expressly refused permission on the excluded issue and that the appellants had no reasonable prospect of persuading an appeal court that they had acted otherwise than unreasonably.
3. The application to extend the appeal beyond the scope specified in the permission order was refused.

• High Court (Chancery Division): Permission to appeal was granted on 2 December 2022 against the bankruptcy orders and the costs provision, but limited to specified grounds. The present application to extend that permission was refused.