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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hinton v Slay (t/a Autosave Topp Agencies) & Ors [2001] EWCA Civ 919 (21 May 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/919.html
Cite as: [2001] EWCA Civ 919
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IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATIONS FOR PERMISSION TO APPEAL AND
EXTENSION OF TIME
Strand London WC2 Monday, 21st May 2001 |
||
B e f o r e :
LORD JUSTICE DYSON
____________________
| HINTON | ||
| - v - | ||
| ANDREW SLAY t/a AUTOSAVE TOPP AGENCIES and Another | ||
| GARNER | ||
| - v - | ||
| ANDREW SLAY t/a AUTOSAVE TOPP AGENCIES and Another | ||
| CLARKE | ||
| - v - | ||
| ANDREW SLAY t/a AUTOSAVE TOPP AGENCIES and Another |
____________________
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
(Official Shorthand Writers to the Court)
The Respondent was not represented and did not attend
____________________
Crown Copyright ©
- LORD JUSTICE SEDLEY: The two cases in which Mr Pay applies today for permission to appeal - two of a troubling trio of cases - were heard, if the transcripts are anything to go by, in a somewhat ill-tempered and sometimes cavalier atmosphere. The impression may be quite wrong, but I start from the position that it does not look as if these two applicants had a very fair crack of the whip.
- All three claimants obtained judgment against Mr Slay. But each of them wanted it against Mrs Slay as well, for reasons which Mr Pay tells us come down to the fact that all the assets appear to be in her name. It was asserted that she was being held out as Mr Slay's partner sufficiently to make her a partner in law. The judge refused to let this be argued without amendment and went on to refuse permission to amend.
- When on the papers I refused permission to appeal to all three applicants, I expressed the view, now accepted, that Mr Clarke had no viable grounds for reasons which the judge had given. I said also at that stage that if the pleading point was all that stood between the other two claimants and a judgment against Mrs Slay I would have given them permission to appeal. But it seemed to me that their evidence of partnership was not strong. Their argument on what evidence there was, I said at that stage, was not helped by the absence of a skeleton argument. Somehow I had overlooked that in the bundle there was a skeleton argument. It has been elaborated further for the purposes of this application today. From it, I am now satisfied that there is an appeal with a very respectable chance of success for Mr Hinton and Mr Garner on the question whether there was a sufficient case to implicate Mrs Slay in the partnership.
- It is now apparent that there are reasons why a judgment against Mrs Slay matters. Mr Pay makes the additional and telling point that Mrs Slay herself had made an unsuccessful pre-emptive strike at the very allegation that she was a partner before the district judge, making it particularly difficult for her to be able to say at trial that the allegation took her by surprise and difficult to see how, without the decision of the district judge being appealed, the trial judge could take the attitude he did towards the need for the allegation to be pleaded and towards amendment if it did need to be pleaded. It is likely that if the appeal succeeds the case will have to go back; but I may be wrong about that.
- In the circumstances I am persuaded that this is a proper case for permission to appeal and, for my part, I would grant it.
- LORD JUSTICE DYSON: I agree.