Patel & Anor v Patel & Anor

After a very long hearing in the Central London County Court, HHJ Edward Bailey made declarations that a property in Lavender Hill and the net rent received there from should be held on trust for the two claimants and the two defendants as tenants in common in equal shares. The result of that declaration was that he ordered that some £436,415 be paid out to the surviving claimant and the estate of the deceased claimant, who sadly died during the course of the hearing.

Application was then made and made in time to appeal those orders, the principal ground of complaint being that the judge was wrong to hold that there was that trust resulting in the equal division of the proceeds of sale. Permission was refused by Etherton LJ but on a renewal a very limited permission was granted by Briggs J sitting as an additional Lord Justice in this court, and permission was granted only as to the discreet issue set out in the schedule to the order. That schedule defined the issues to be whether the learned trial judge correctly answered questions 3(2) and 8(i) which were posed by him in paragraph 103 of his judgment, in particular whether it was correct to treat the defendants as having been compensated out of their drawings for the sum of £14,000 and the sum of £24,000, the first defendant counsel's figure, expended by the defendants in works on the property after its purchase when the claimant's expert had already accounted for any greater drawings by the defendants than the claimants in his division of the proceeds of sale of the property in his report.

The schedule recited that for the avoidance of doubt the issue did not extend to enable the defendants to seek to argue that those contributions should give them a greater share of the equity in the property than 50%, but only to enable them to argue that the appropriate sum should be repaid to them without interest.

As a result of that limited permission Mr Mullis, who appears for the respondents, put in a full and careful skeleton argument in which he analysed the accounts in respect of the payments of £14,000 and £24,000 and demonstrated that they had been fully taken into account by the expert whose evidence the judge accepted. There was no inaccurate accounting in the result.

Mr Michael Jeffries appears for the first defendant. We have expressed our sympathies with counsel for the second defendant, who is unable to be here today because of the sad death of his mother last week. So the second defendant is not represented other than by the appearance of her solicitor. For his attendance we are grateful.

Mr Jeffries, faced with the compelling logic of Mr Mullis's skeleton argument, has had to concede that those submissions are absolutely right and that as a result his appeal as formulated in the narrow terms in which it comes before this court has no prospect of success, and he has to concede that the appeal should as so presented be dismissed. That was a conclusion that may have been reached, as I understand it, in conference yesterday when his clients were compelled to accept the logic of the argument, but the discussions which were held revealed, submits Mr Jeffries, that there is a wholly different sum of £6,000 which he would wish to show has not been brought into the account and so he seeks permission this morning to amend the notice of application to seek therefore a completely fresh permission to appeal in respect of that £6,000 and to seek accordingly a full account to be taken for the matter to be remitted to the county court for that purpose.

We have to treat that therefore as a fresh application for permission to appeal, and it comes after a judgment that was handed down on 9 December of 2008. It is wildly out of date, as Mr Jeffries has to concede, and there is no good reason for the delay save that failure of the appellant to appreciate that this point was there for the taking at all. That is not a good enough excuse to extend time and for that reason alone I would refuse permission to appeal. But it is worse than that. This appeal seeks to put in issue a small sum of £6,000 being an amount not properly accounted for in distributing the profits of this property venture which amounted to some £830,000. As a proportion of the sum in dispute it is totally insignificant. As a sum of money which would require, as it would have to do, the adjournment of this application in order to give Mr Mullis a proper opportunity to consider a properly amended notice of appeal, to consider the grounds of appeal that are put forward to explain this arithmetic, which at the moment is locked in mystery so far as Mr Mullis is concerned -- and, I might add, so far as I am concerned -- all of that would result in additional expense in addition to some £170,000 already spent on this ghastly litigation. The money in issue is disproportionate and a waste of this court's time and for that reason also I would refuse permission to appeal.

In the result therefore the appeal is dismissed and this fresh application to extend time is refused.

I agree

I agree.