Khan v Gajeepan and Another

(As Approved by this Court)

This is a renewed application for permission to appeal. The application is made by counsel on behalf of the applicant who is the claimant in the proceedings, Mr Mohamed Munaver Khan. The decision which he wishes to appeal is that of HHJ McMullen QC on 11 June 2010. The matter first came before this court when it was dealt with, on the papers that were submitted, by Etherton LJ and he refused permission on 14 July 2011 saying:

"The Judge's decisions which are the subject of the grounds of appeal rest on his findings of fact on the various matters argued before him. Those findings of fact were ones he was entitled to reach. An appeal has no real prospect of success."

Then there was a renewed application for permission. The papers before me do not seem to be complete. What I am told is that there was consideration of this matter by Kitchin LJ, but when I look at the bundle that has been supplied I do not know what order he made, because what is indexed as "Order of Kitchin LJ" at page 42B simply says "Order of Kitchin LJ not received yet". Otherwise it is a blank. I do not know what he did, but it seems that he made an order of some kind on 3 November 2011 for the submission of a skeleton argument. That appears at page 18 of the bundle and was drafted by counsel, Mr MacLeod-James.

There are a number of problems with dealing with this matter today. First of all, papers are now put before me which I have not had an opportunity to consider. They include a witness statement of Mr Khan dated 15 February, that is, yesterday. I have not seen that before. Secondly, the whole case suffers from the problem that there is no transcript of the judgment of HHJ McMullen. I am told by Mr MacLeod-James that there probably is not going to be one, because the court says that it has lost the possibility of a mechanically produced transcript. What we have instead in the bundle at item five is an agreed note of judgment; that is on page 33. It is a reasonably detailed note. Then, during the course of this hearing, I was handed from Ms Lu (who is the proposed respondent to this appeal) another document headed "SOLICITOR'S NON VERBATIM NOTE OF JUDGMENT APPROVED BY THE JUDGE". I am not quite sure what is being proceeded with as the basis of the record of the judgment of HHJ McMullen. That is something that will obviously have to be clarified. Then, unusually as I have already indicated, the proposed respondent to the appeal, Ms Lu, is here in what is normally an ex parte application to decide whether the appeal has a real prospect of success. I have been supplied by her – she is acting in person – with a 34-page typed submission dated 28 January 2012.

From the papers that I have read before coming into court my thinking is the same as Etherton LJ's: that what is being sought to appeal in this case are various findings of fact which the judge made on hearing the evidence and considering the documents. The applicant wishes to appeal against those findings. I have explained to Mr MacLeod-James, as he is well aware, that there are very serious difficulties in appealing against findings of fact to this court. This is a court of appeal, not a trial court. It does not re-hear or re-try cases, it reviews cases to see if the decision was a wrong decision, that is, one that was not made in...