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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 >> Burke & Ors v Giumba & Ors [2001] EWCA Civ 1561 (12 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1561.html Cite as: [2001] EWCA Civ 1561

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Cowell)

		Royal Courts of Justice Strand London WC2 Friday, 12th October 2001

1. LORD JUSTICE WARD: This is an application by Mr. Giumba for permission to appeal against the orders made by His Honour Judge Cowell in the Central London Court on 23rd April 2001. I should say at once that what I intend to do is to adjourn this application, to be listed on notice to the claimants, and with the appeal to follow if permission is granted at that renewed hearing.
2. The reason I take that course is this. Among the several orders made by the judge, one relates to the payment of the sum of £4,193.81 claimed by Mr. Derbyshire to be due to him on a dishonoured cheque. The applicant did not help himself in the court below by producing documents at a late stage of the hearing but, as appears from the judgment at page 20, a document was produced which seemed to suggest that a cheque for that amount was paid into a Barclaycard Gold account numbered 492906 at Muswell Hill. That number was different from the number of a Barclaycard Platinum account in Mr. Derbyshire's name, numbered 4929428394075009. And so, perhaps not surprisingly, the judge was unable to accept that if account 492906 did truly reflect the receipt of moneys, he was not sure that it was Mr. Derbyshire's account. Mr. Giumba now produces to me a document in which the full number of that account is given. Mr. Giumba says that he can show, though he has not shown to me, proof that that account is a second account held by Mr. Derbyshire. If he is right and if Mr. Derbyshire gave evidence to the judge which is incorrect, then it is possible -- I say no more than that it is possible -- that it may undermine the whole fabric of the claimants' case against Mr. Giumba and that it may, and again the emphasis is on may, undermine the essential findings of fact which led the judge to conclude what is the principal issue in this case, namely that a Mr. Karallis should be declared the owner of 35 per cent of the shareholding of the wine bar. The applicant says that Mr Karallis was only to get his share of the business when he produced his part of the bargain; that is to say, Mr Karallis did what he agreed to do in the document of 7th March.
3. The judge treated the obligations as separate. The issue is whether the one was dependent upon the other. In coming to his decision, the judge was undoubtedly much concerned as to which side he believed, and if that can be dented there may be something for this court to look at. It is at the moment speculative.
4. I will adjourn the matter for the claimants to appear. I would expect, but I will not make a direction to that effect, that Mr. Derbyshire, a member of the bar, will produce his Goldcard bank statement to accept or to deny that he is the account holder of account 4929061791600. The matter must come back for further hearing. It will have to be listed before two Lords Justices.
Order: Application adjourned on notice to the claimants, to be listed before two Lords Justices, with appeal to follow if permission is granted.