Appeal judges have rejected a claim that they failed to “properly and fairly” consider an appeal after one of them described the appellants as “crooks”.
Lord Justice Longmore said Lord Justice Vos “did indeed comment on the first morning of the hearing that the judge had found that the appellants were ‘crooks’ – a colloquial word indicating that they had behaved dishonestly in relation to these transactions. But that was exactly what the judge had found”.
Longmore LJ went on: “The comment was made because the appellants’ counsel repeatedly asked the court, in effect, to accept the appellants’ explanations for their conduct, when the judge had expressly rejected those explanations.”
Longmore LJ said the Court of Appeal was “seeking to make clear to counsel for the appellants” that he had not appealed the judge’s findings of fact and could not succeed by asking appeal judges to accept facts or explanations which Mrs Justice Rose had rejected.
The court heard in Goldtrail Travel v Aydin and others  EWCA Civ 439, that counsel for four of the six defendants in the case applied under CPR 52.17 for permission to reopen the appeal.
“According to the skeleton argument of the appellants’ counsel, the reopening of the appeal is necessary to avoid real injustice, arises in circumstances that are exceptional and where there is no alternative effective remedy,” Longmore LJ said.
A statement by their solicitor said that in light of Vos J’s comment, one of the appellants “considered that the Lords Justices had decided prior to the hearing of the appeal that he and the other [appellants] were crooks and that their appeal had not been properly and fairly considered by the Court of Appeal.”
Other grounds included allegations that “the judges had not read any of the documents and witness statements, that they had interrupted the submissions of counsel for the appellants, and that the court had a number of factual misunderstandings”.
Longmore LJ said the Court of Appeal did not “propose to deal with the challenges to the correctness of our judgments”. He described the criticisms as “simply wrong or at least insubstantial, semantic or one-sided”.
Longmore LJ noted that it was “not the first time” the appellants had “attacked the behaviour of the court” and “repeatedly suggested” Mrs Justice Rose had behaved unfairly towards them.
The judge rejected the argument that the court had not read the documents, saying that all its members had read the papers for one day and Lord Justice Vos for two.
“In our judgment, the appeal was conducted in an entirely fair and conventional manner. The appeal lasted two court days and the appellants’ counsel made submissions for more than one of those days.
“The court raised issues of concern with counsel as it customarily does. The court’s concerns were not adequately dealt with by counsel for the appellants and he repeatedly reverted to trying to persuade the court to accept explanations offered by his clients for the transactions, which had been rejected by the judge.
“These aspects are reflected in Vos LJ’s judgment with which the other members of the court agreed.”
Longmore LJ accepted that Vos LJ had misread one paragraph of the amended particulars of claim, but the error did not affect “the substance of our decision”.
Dismissing the application, Longmore LJ said the reopening of the appeal was not necessary to avoid injustice and there were no exceptional circumstances. “There was no basis whatever for a submission that the integrity of the litigation process in this case has been undermined, either critically or at all.”
Lord Justices Vos and Kitchin contributed to the judgment.