England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(JACKSON J)
(Application of Claimant for PTA
the decision to refuse PTC for JR)

		Royal Courts of Justice Strand London WC2 Monday 9th July 2001

Monday 9th July 2001

1. LORD JUSTICE HENRY: This is an application for permission to apply for judicial review. The facts giving rise to the application are summarised in the judgment of Jackson J in refusing permission. They are these. The claimant was in regular employment with a company which had a health insurance policy with the Royal & Sun Insurance Group, and the claimant, Mr Kaston, claimed insurance benefits under that policy on the basis that he was prevented from working by reason of ill-health. For the first eighteen months or so the insurers paid out on those benefits. Then they stopped paying benefits because they claimed that the claimant was a malingerer. The claimant then began proceedings in the Liverpool County Court against the insurers in order to enforce payments under the policy, maintaining that he was genuinely ill and had not been malingering.
2. The case was a substantial one. There was expert evidence on both sides. The trial took three days or thereabouts. The judge reserved judgment and on 30th June he gave judgment for the insurers. He dismissed the claimant's claim and ordered the claimant to pay the insurers' costs.
3. The claimant was aggrieved by that decision and he considered that the judge had fallen into error in a number of respects. I will read them out. The judge had failed to pay regard to evidence which was favourable to him, the claimant; the judge had paid undue attention to evidence which was unfavourable to him; the judge had made interventions during the case which the claimant considered showed bias against the claimant, and similar matters. Accordingly, the claimant sought leave to appeal against the decision of the judge, His Honour Judge Mackay.
4. The case in point that the claimant brought was tried by a circuit judge in the County Court. Under the new Civil Procedure Rules which were in force for the purposes of this case the appeal lies from the circuit judge in the County Court to a High Court Judge sitting in the Queen's Bench division of the High Court.
5. The application for permission to appeal was first refused on paper by the Honourable Penry-Davey J, and permission to appeal was refused. The application was then renewed to be heard at an oral hearing before Hunt J. He was asked to reconsider Penry-Davey J's decision in an oral hearing. He refused permission to appeal from it, endorsing in a reasoned judgment the decision of Penry-Davey J.
6. The Manual of Civil Appeals says this:

"If at a hearing the appeal court [which in this instance is the judge of the Queen's bench division] refuses permission to appeal [and this is on an oral hearing] then no further right of appeal exists."

7. The authority for that is section 55(4) of the Access to Justice Act 1999 and in relation to the Manual of Civil Appeals and I am reading from paragraph 2.25.
8. When one comes to the rules, first one goes to the Practice Direction and the rule in question is rule 4.8 of the Practice Direction, the reference to which is 52PD-006 at page 999 of the first volume of Civil Procedure. The rule there states:

"There is no appeal from a decision of the appeal court, made at an oral hearing, to allow or refuse permission to appeal to that court."

9. Reference is made to section 54(4) of the Access to Justice Act 1999, which can be found on page 1942 of volume 2 of the 2001 edition of Civil Procedure, where section 54 of the Act reads, so far as is relevant, the exception not being relevant on the facts of this case:

"(4) No appeal may be made against a decision of a court under this section to give or refuse permission ..."

10. So what that adds up to is this. In those circumstances the appellate process has been exhausted and the end of the road, so far as the appellate main track is concerned, has been reached.
11. There are circumstances in which decisions of the County Court can be subjected to judicial review as an alternative remedy to the form appeal process of going to the Court of Appeal. But what is impermissible is for a litigant who has pursued the appellate process to finality in the Court of Appeal to start all over again in the Administrative Court with a remedy in relation to judicial review. Every point taken by judicial review in this case could be, and here was, taken on appeal and one has the judge's findings on all those points.
12. In the Manual of Civil Appeals one has at paragraph 4.5 reference to the jurisdiction of the Court of Appeal. The jurisdiction of the Court of Appeal was and remains statutory but "there is in the statute no restriction upon the jurisdiction of the Court of Appeal". Grounds of appeal have evolved by case law over at least two centuries. They evolved into several categories which have overlapped considerably. The categories arguably may be summarised as follows:

"1. Misdirection/error of law.

2. Finding of fact against the weight of the evidence/finding of fact to which no reasonable tribunal could properly make/fail to find facts.

3. Exercise of discretion which no reasonable tribunal could properly make.

4. New evidence.

5. Misconduct of the proceedings and procedural irregularity."

13. Procedural irregularity would obviously cover, if this was a case for it, infringement of Article 6 of Schedule 1 of the Human Rights Act – the right to a fair trial.
14. It is the contention of Mr Kaston before me today that, though he concedes that he has reached the end of the road on the appeal to the Court of Appeal, he submits that he has an alternative remedy to go by way of judicial review and that he is entitled to take that remedy.
15. In my judgment he is wrong in this submission. The claimant cannot come to the Administrative Court, which is an inferior court to the Court of Appeal, and use that court as an alternative and second avenue for appeal. That would be an abuse of process, in that it would wholly duplicate the points that were heard by the first court, and, I emphasise, the superior court. The remedies that the claimant seeks by way of judicial review are those that he sought in the appeal which he lost. He has exhausted those avenues of appeal. The court's judgment in the circuit judge's judgment has been reviewed by two High Court Judges and upheld. It cannot now be challenged in the Administrative Court by an application for judicial review. To permit it to be so challenged would be an abuse of the process of the court. In those circumstances, this application for permission to appeal must be dismissed.
ORDER: Application for PTA the decision to refuse PTC for JR dismissed.