To obtain permission to appeal, the court must be satisfied the appeal has a real prospect of success, and the test is the same as that for summary judgment. Is there a realistic, rather than a fanciful, prospect of success?
The High Court has refused permission to appeal in a contractual dispute over construction works to a residential property in Akram v Academy Doors and Windows Ltd and another [2023] EWHC 1653 (KB).
The claim concerned the construction of a kitchen extension, various works to the ground floor, the refurbishment of an upstairs bathroom and the supply and installation of triple-glazed windows to all windows at the property. The parties disputed which defendant had responsibility for which works – which was relevant as the first defendant had ceased trading – and whether the contract price included both labour and materials and VAT. It was common ground that the works were defective and incomplete but liability was disputed. The defendants counterclaimed for breach of contract, arguing that the claimant was responsible for the defects, having permitted an unqualified friend to act as de facto project manager.
The judge accepted the claimant’s submissions that she contracted with the second defendant to carry out the main building works and the first defendant in respect of the windows. The second defendant was not registered for VAT and so it was not payable. Save for the upstairs bathroom, the contract was for both labour and materials, and the defective works were caused by the second defendant’s shortcomings. The counterclaim was dismissed. The claimant was awarded damages of £10,000 against the first defendant and £34,712 against the second defendant.
The defendants appealed. Permission to appeal may be given only where the court considers that the appeal would have a real prospect of success, or where there is some other compelling reason for the appeal to be heard. The test for the prospect of success is the same as for summary judgment. A challenge to a trial judge’s findings of fact requires a real prospect that the appeal court will be satisfied that the findings were unsupported by evidence or the decision was one that no reasonable judge could have reached.
There was no real prospect of establishing that the judge’s findings of fact as to the contracting party, the building contract or responsibility for the defective works were not open to him on the evidence or were findings that no reasonable judge would make. His findings on the counterclaim were entirely consistent with his earlier findings.
Louise Clark is a property law consultant and mediator
