Chisese v Eze [2016] EWCA Civ 1240

[2016] EWCA Civ 1240Case No A3/2015/2953
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MR ANDREW HOCHHAUSER QC)
Venue Royal Courts of JusticeDate Tuesday, 15th November 2016
Strand
London, WC2
B E F O R E:
LORD JUSTICE SALES
Between
VICTOR CHISESEApplicantv
Between
PRINCE ARTHUR EZERespondent
(Digital Audio Transcript ofWordWave International Limited Trading as DTIA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Applicant appeared in Person for in personJ U D G M E N T (Approved)Crown
[1]This is a renewed oral application for permission to appeal in relation to a judgment dismissing Mr Chisese's claim against Prince Arthur Eze, based on alleged breach of an alleged oral agreement made between himself and Prince Arthur Eze.[2]The judge, to summarise very shortly, dismissed the claim essentially on two bases. First, he disbelieved Mr Chisese's case on the evidence: he found that no oral agreement had been made. Secondly, the judge found that in any event the claim had been brought outside the relevant time limit in the Limitation Act 1980 and that there was no proper basis for an extension of time on the basis of mistake or fraud under section 32 of that Act.[3]The application made to me today has suffered from the fact that originally Mr Chisese submitted a replacement skeleton argument in support of the application of appeal and the court’s pre-reading was based upon that; however, he arrived at court today some 10 minutes late for the application with an additional document and a series of appendices to that which he says go to support his application for permission to appeal. His oral application was framed with reference to this new document and those appendices. I will come to the appendices in a moment.[4]The application for permission to appeal was refused on the papers by Patten LJ he said:
"1. The grounds of appeal have no prospect of success. Quite apart from the Limitation Act defence, the judge found on the evidence that there was no binding agreement of the kind alleged between the claimant and the second defendant [Prince Eze]. This was a finding that was fully open to him on the evidence and there is no realistic prospect of this court setting it aside. 2. The allegations of impropriety of the judge have no foundation and ought not to have been made."
[5]Aside from the argument in relation to the appendices which I have heard this morning, in my view it would be impossible to say that Patten LJ had made any error in his assessment of the circumstances relating to the appeal and in his decision that this was a case where permission to appeal should be refused.[6]So the question then becomes whether any of the references to the appendices by Mr Chisese before me this morning makes any difference to that assessment. In my view, they do not.[7]First, appendix 1 is a particular e-mail taken from the disclosure available at trial. Mr Chisese confirms that this was part of the material available in advance of trial although he maintains he did not have a fair chance to read it himself. However, the fact remains that this was material on which he could have relied at trial had he chosen to do so. It was available to him, he told me, some 5 weeks before trial. There is no real prospect that the court would say that this is a document to which reference made now can in any way impugn the findings of fact made by the trial judge. There was a fair opportunity for this material to be deployed as part of the overall evidential picture. It cannot be said, if it was not deployed, that there is any unfairness involved in the way that the judge has approached his findings of fact.[8]Appendix 2 is another e-mail. Mr Chisese again confirms this as a document which was available at trial. He says that he refers to this because it shows that the judge is plainly wrong on his assessment of the evidence. In my view, there is no real prospect of success on appeal that he would be able to maintain any such case. The judge made a careful and thorough examination of all dimensions of the evidence as were addressed to him and on which he heard submissions. This document is very far indeed from showing that he was wrong in any way in his assessment of the evidence that was presented before him.[9]Appendix 3 is a document which was not available at trial. It is a response to a Freedom of Information Act request by Mr Chisese to the City of Westminster in relation to whether Lukoil Overseas Ltd was located at 5 - 11 Charles House, Regent Street, SW1 and/or 86 Jermyn Street, London SW1. There is no witness statement or application to admit this material as new evidence and Mr Chisese has not persuaded me that there is any real prospect that he would be successful in meeting the relevant criteria for it to be admitted as new evidence. Moreover, I am entirely unpersuaded that this material, even if admitted as the evidence, could have any material bearing upon the factual assessments made by the judge in relation to the making of the oral agreement.[10]Appendix 4 is the last of the relevant appendices relied upon. Mr Chisese confirms that was a document available at trial. Again, he says that it shows that the judge was plainly wrong in his assessment of the evidence. My assessment of this material is the same as in relation to my assessment of Appendix 2. There is no real prospect of success on appeal in showing that the judge was wrong in his assessment of the evidence overall by reference to this document, whether taken by itself or cumulatively with the other appendices to which I have been referred.[11]Thus far I have been dealing with the judge's assessment of the facts, whether there was the oral agreement alleged. In my view there is no real prospect of success even with reference to these appendices for this appeal, in respect of disturbing the judge's finding in relation to that. The judge heard and saw the witnesses and was made his assessment of the position and findings of fact in the light of the evidence of all of them. There is no proper basis on which this court could interfere with his findings of fact.[12]But quite apart from that the judge upheld the limitation defence put forward by Prince Eze. Mr Chisese, on this application, submits that the document at Appendix 1 provides the answer to that. He says that there was either a mistake or fraud which misled him as the proper party to the arrangements that were made and the identity of Oranto Petroleum. In my view, this is not a matter which gives rise to any real prospect of success in relation to the limitation defence either. I have already commented on the significance of Appendix 1, which was a document which was available at trial. There is no unfairness in the judge's assessment of the factual position in relation to the limitation defence.[13]Moreover, having read Appendix 1, I am entirely satisfied that it gives rise to no real prospect of success on an appeal in relation to the limitation defence which was upheld by the judge. It does not undermine in any way at all, in my view, the reasoning of the judge in relation to the limitation defence.[14]For these reasons I do not consider there is any real prospect of success on appeal. I confirm my agreement with the reasons given by Patten LJ on the papers. There is no other compelling reason why permission to appeal should be granted. Accordingly this application is dismissed.