Wemimo Mercy Taiwo v Homelets of Bath Limited & Ors

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 factual findings based on witness credibility faces the added difficulty that the appellate court generally defers to the trial judge.

For section 57 of the Criminal Justice and Courts Act 2015, the defendant bears the burden of proving fundamental dishonesty. The court must apply the two-stage dishonesty test and then decide whether dismissal would cause substantial injustice. Damages for anxiety caused by harassment may form part of a claim for personal injury and may therefore fall within section 57. A court need determine only the factual issues necessary to answer the determinative questions.

The claimant had succeeded on liability in a claim arising from harassment and assault during an attempted eviction. At the quantum trial, the judge found that she had been fundamentally dishonest concerning the genuineness of her marriage, applications for Employment Support Allowance and the extent of her psychiatric disability. The entire claim, including damages for injury to feelings and anxiety, was dismissed under section 57 of the Criminal Justice and Courts Act 2015.

The claimant renewed applications for permission to appeal the quantum judgment and consequential orders. She also sought permission to amend her grounds, challenged the termination of her litigation friend, disputed costs and joinder orders, and opposed a civil restraint order. The central issues were whether any proposed ground was reasonably arguable, whether there was a compelling reason to hear the appeal, and whether the consequential orders were unsafe.

1. Quantum judgment. Permission to amend and permission to appeal were refused. None of the proposed grounds had a real prospect of success or disclosed another compelling reason for an appeal.
2. Under CPR 52.6(1), the relevant prospect must be realistic rather than fanciful. Where the challenge concerns findings dependent on credibility, the applicant must show that the findings were unsupported by the evidence or were ones which no reasonable judge could have reached. The trial judge’s findings were supported by the evidence and permissible inferences.
3. The allegations of dishonesty had been sufficiently identified in the pleadings and evidence. The claimant had adequate notice of the case and a fair opportunity to answer it. The judge correctly placed the burden of proving dishonesty on the defendant and applied the two-stage test in Ivey v Genting Casinos and Cojano.
4. The findings concerning the marriage, ESA applications and psychiatric symptoms were not based on a reversal of the burden of proof. The judge was entitled to assess the claimant’s presentation alongside the evidence of her own psychiatric expert, the medical records and the surrounding circumstances. The dishonesty was fundamental because it went to the root of the claim.
5. The judge had properly considered substantial injustice. His conclusion that the claimant should not be relieved from the consequences of section 57 was plainly open to him. Damages for anxiety caused by harassment under section 3(1) of the Protection from Harassment Act 1997 were damages for impairment of mental condition and part of the primary personal-injury claim for section 57 purposes.
6. The proposed fresh evidence failed the first limb of Ladd v Marshall. It could have been obtained for trial with reasonable diligence. The judge was not required to determine every pleaded factual issue, only those necessary to resolve causation, loss and section 57.
7. Consequential orders. Permission to appeal was refused and the application for an extension of time was refused. The termination of the litigation friend was supported by the claimant’s own expert evidence that she had capacity. The indemnity costs order, payment on account and joinder for consideration of non-party costs were not reasonably arguable grounds of appeal.
8. Civil restraint order and costs. A limited civil restraint order was made against the claimant and Mr Diamond because they had made at least two totally without merit applications and Mr Diamond was the real motive force behind the litigation conduct. The claimant was ordered to pay 75% of the respondent’s reasonable costs from the date of the paper refusal of permission, with an interim payment of £7,500.

The claimant succeeded on liability before Recorder Sharp QC in 2018. His Honour Judge Blohm KC dismissed the claim at the quantum trial on 2 January 2025 under section 57 of the Criminal Justice and Courts Act 2015 and made consequential orders on 13 March 2025. Sheldon J refused permission to appeal on the papers. HHJ Berkley treated the later application as an oral renewal and refused an extension of time concerning the consequential order. Bourne J struck out a further application as totally without merit. The Court of Appeal, through Newey LJ, refused permission to appeal the Bourne Order. Mr Justice Constable refused the renewed applications in this judgment.