A man castigated in a judgment as plotting a dishonest conspiracy – despite not even being party to the underlying case – has successfully challenged the ruling in court.

In what judge Mrs Justice Joanna Smith described as a ‘highly unusual appeal’, Ronald Popely contested the findings of fact made following a case in which he neither appeared as witness nor submitted any evidence.

In Popely v Ayton Ltd & Anor, the court heard that Mr Recorder Geraint Jones KC, sitting at Central London County Court, made assessments of Popely that went ‘far beyond the four corners of the case’, involving the hatching of a malicious plot to damage his brother and being the main conspirator behind the disputed sale of a property.

The trial judge, the court heard, had said Popely was ‘conspicuous’ by his absence during proceedings. However he was not named in the particulars of claim or asked to appear as a witness.

Popely identified 17 adverse findings of fact made against him and complained that the process adopted by the judge was unfair. Despite the findings being likely to harm his reputation and right to a private life, the judge gave him no warning that they would be made or any opportunity to answer the allegations. The successful party in the underlying case then applied for an order that Popely be jointly and severally liable for its costs.

On appeal, Popely argued this was an extreme case where the court had completely failed to put in place any fair process for him to know that findings might be made against him.

The appeal judge agreed it was ‘extremely unusual’ in a civil case for the court to make such serious findings, with potential legal consequences, on unpleaded matters against a non-party. She found that the county court judge appeared to have concluded that Popely was somehow responsible for not attending the trial and was influenced by this absence.

She added: ‘The assumption that individuals who are not involved in a case and have not been asked to appear to give evidence should nevertheless be putting themselves forward voluntarily appears to me to be fundamentally misconceived and is an important part of the procedural unfairness that occurred in this case.’

The judge’s approach was ‘wholly mistaken’ with a ‘total lack of any procedural process’, with no justification for making the adverse findings.

Smith said it was not possible for the court to effectively redact paragraphs in a published judgment, but she directed that the adverse findings be set aside and ‘treated as if they had never been made’.

 

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