England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(Mr Justice Blackburne)

		Royal Courts of Justice Strand London WC2
		Wednesday, 25th July 2001

1. LORD JUSTICE ROBERT WALKER: This is an application for `permission to appeal from an order of Mr Justice Blackburne made on 29th March 2001. The terms of the order were fairly complex, but the paragraph from which the applicants, Dr Richard Naish and Dr Sandy Perinpanayagam, wish to appeal is paragraph 2, by which the judge:

(i)refused the applicants permission to appeal in respect of an account taken by Master Bowman in an action by the applicants against the defendant, Dr Rita Bhardwaj; and

(ii)refused the applicants permission to reinstate paragraph 2 of their proposed grounds of appeal (which would have had the effect of letting in the issue of the account).

2. The applicants' appellant's notice puts forward the contention, in section 7, that the judge was obliged to give permission to appeal if the point had a real prospect of success (which the judge accepted that it had).
3. In order to explain the matter I must go back to the beginning. The parties are, or were, medical practitioners in general practice. In 1993 they went into partnership with the defendant as the junior partner. Unfortunately, the partnership rapidly proved unhappy and on 17th October 1994 the applicants summarily dissolved the partnership. The defendant retaliated by freezing the partnership's bank accounts. On 30th November 1994 the applicants sued the defendant in the Chancery Division and made an application for interim relief.
4. On 5th December 1994 Mrs Justice Arden made an order unfreezing the bank accounts and allowing funds to resume their flow from the Family Health Service Authority. Dr Naish was appointed as receiver and there was an order for accounts and enquiries. There was also an order for trial of the only substantial issue in the action: that is, whether the partnership was terminable at will or only on notice.
5. There were then various steps taken (or not taken) which occupied 1995 and 1996. I need not detail them, except to say that they involved a good deal of dilatoriness on the part of the defendant. There was an order for transfer of the proceedings to the Central London County Court, but that order was for some reason later rescinded. Eventually there was a pre-trial review before Master Bowman on 21st July 1999 and the trial (that is, of the issue as to notice and the taking of the account) took place before the Master on 11th May 2000.
6. Master Bowman decided that the partnership was terminable only on three months' notice. On that point Mr Justice Park on 27th November 2000 granted permission to appeal and an extension of time for appealing, and Mr Justice Blackburne allowed the appeal by his order of 29th March 2001. The order contained consequential directions for repayment of £3,000 paid as an interim sum on account of damages and permission to seek repayment of interim payments on account of costs (see paragraphs, 3, 4 and 11 of the order). With certain exceptions the judge directed that there should be no order as to costs of the issue or the account, either at first instance or on appeal. The judge said, in the course of his lengthy and thorough judgment, that this was a case in which the costs had got out of control. The judge refused permission to appeal against paragraph 2 of the order (see paragraph 12).
7. I must go back again to the taking of the account. At a hearing before Mr Jules Sher QC, sitting as a deputy judge, as long ago as 14th October 1996 the account brought in by Dr Naish was declared final except as regards two items: first, whether the sum of £38,932 or £26,592 (or some other amount) was due from the partnership in respect of certain health centre charges; and second, the effect of tax. The latter point fell away. So the accounting dispute before the Master was limited to the single issue of health centre charges. However, that issue was not an easy one. The Master decided that the correct sum was £26,592 with the consequence that the partnership profits were understated. The defendant's share was £2,442 and that sum was due to her on the taking of the account.
8. In reaching that conclusion the Master had evidence from two accountants, Mrs Burns for the applicants and Mr Hindocha for the defendant. The Master preferred Mr Hindocha's conclusions, but both Mr Justice Park and Mr Justice Blackburne accepted the submission made on behalf of the applicants that the Master did not give (or at any rate may not have given) adequate reasons for preferring one accountant's evidence to the other's.
9. Nevertheless, both judges refused to grant permission on this point. Mr Justice Park said that to do so would be disproportionate. Mr Justice Blackburne took the same view. He said:

"... the reason why I take the view, in agreement with Mr Justice Park, that this would not be an appropriate case for giving permission to appeal is simply because of the smallness of the sum involved. As [counsel for the defendant] has mentioned, dealing with cases in ways which are proportionate to the amount of money involved is part of the statement of the overriding objective set out in rule 1.1 of the Civil Procedure Rules. See para (2)(c)(i) of Rule 1.1. By rule 1.2, the court is obliged to seek to give effect to the overriding objective when it exercises any power given to it by the rules.

There must, in my judgment, come a point where the disparity between the sum in issue and the costs involved in litigating that issue is so great as to oblige the court, having regard to the overriding objective, to refuse a party the opportunity to litigate the matter further."

10. I should add that between the hearings before Mr Justice Park and Mr Justice Blackburne (and by way of explanation of the interval between those two orders) Mr Adrian Jack on behalf of the applicants applied on paper to the Master of the Rolls under section 57(1)(a) of the Access to Justice Act 1999 for a direction that the appeal from Master Bowman should be heard by the Court of Appeal. The Master of the Rolls refused the application on paper, saying that the application to broaden the scope of the appeal should be renewed at the hearing of the appeal in the Chancery Division. He also said:

"The issue of principle can be addressed if and when it arises on an application to the Court of Appeal for permission to appeal."

11. So this application may be said to have received at least slight encouragement from the Master of the Rolls himself. Mr Jack has made it with great clarity, skill and moderation, suggesting that the views of Mr Justice Park and Mr Justice Blackburne are contrary to the philosophy of the Bowman Report that there should always be a right of appeal at one level, contrary to the rule of law, and likely to create an Alsatia in the Masters' corridor. He has said that £2,442 is not a great sum but that it is not insignificant and, more importantly, that it now has substantial costs implications.
12. These submissions deserve serious consideration and I am inclined to agree with Mr Jack that, if arguable, they would raise an important point of principle or practice fit to be considered by the Court of Appeal under the stringent test in section 55 of the Access to Justice Act. However, they immediately encounter a very serious difficulty, which is that section 54(4) of the Access to Justice Act provides:

"No appeal may be made against a decision of a court under this section to give or refuse permission [that is, permission to appeal] (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court)."

13. As Lord Justice Brooke (giving the judgment of the court) said in Clark v Perks [2000] 4 All ER 1, at p.6, these words mean what they say. If a Master has refused permission to appeal and a High Court Judge has again refused it on a renewed application to the High Court, that is the end of the road. The Court of Appeal has no jurisdiction to hear an appeal from the decision of the High Court Judge unless it could be truly said that there was no decision at all, for instance (to take a somewhat fanciful instance suggested by Lord Donaldson MR in Daisystar v Town & Country Building Society [1992] 1 WLR 390, at p.394) because there had been confusion between two different sets of papers containing applications for permission to appeal.
14. Lord Justice Brooke has returned to the same topic in Foenander v Bond Lewis & Co 23rd May 2001, Neutral Citation Number [2001] EWCA CIV 759. Lord Justice Brooke said, in paragraph 18:

"The principle which underlies the rule in Lane v Esdaile [1891] AC 210 (which was recently reaffirmed by the House of Lords in R v Secretary of State for Trade and Industry ex p Eastaway [2000] 1 WLR 2222) and in section 54(4) of the 1999 Act (insofar as it refers to the refusal of leave to appeal) is that if both a lower court and an appeal court at a lower level of the judicial hierarchy have decided that a proposed appeal has no real prospect of success, and that there is no other compelling reason why the appeal should be heard (see CPR 52.3(6)), that must be the end of the matter, and this issue cannot be relitigated higher up the judicial chain."

15. I do not understand that passage as saying or implying that permission to appeal may not be refused at a lower appellate level if an appeal would have a real prospect of success.
16. In Foenander v Bond Lewis & Co the issue for the High Court Judge was a different one (that is, whether to extend time for appealing) and so section 54(4) did not apply. Lord Justice Brooke, in a later paragraph, pointed out the practical implications of that for appellate tribunals faced with an application for permission to appeal and with an application for an extension of time for appealing. But the issue whether to grant permission to appeal on a particular ground and the issue whether to reinstate that ground in an appellant's notice are not different issues: the latter is simply a formal reflection of the substance of the former. The fact that Lord Justice Blackburne refused permission to appeal, no doubt from an abundance of caution, cannot alter that. He certainly had no power to grant permission to appeal to this court on the substantial point.
17. It seems to me that the applicants cannot be permitted to circumvent that rule, embodied as it is in primary legislation, by framing their application in the alternative as an application for permission to appeal from Mr Justice Blackburne's decision about the contents of the appellant's notice. That was, as I have said, simply a formal reflection of the point of substance. Nor will section 54(4) bear the meaning which Mr Jack seeks to put on it under section 3(1) of the Human Rights Act 1998. Nor can I accept that it is even faintly arguable that section 9(1)(a) of that Act gives a freestanding right of appeal contrary to the effect of section 54(4).
18. Mr Jack, who has said everything that can possibly be said in support of this application, has also submitted that section 54(4) does not apply because Mr Justice Park gave permission to appeal and there was indeed a successful appeal on the notice point. The fact is, however, that Master Bowman, Mr Justice Park and Mr Justice Blackburne have all refused permission to appeal on the accounts point. I would have no jurisdiction to interfere with those decisions even if I were convinced that they were all wrong. I am not convinced as to that. Every court which has jurisdiction to grant permission to appeal at all has a judicial discretion whether or not to grant it, subject to limitations and guidelines contained in primary legislation, in the Civil Procedure Rules (especially rule 52.3, paragraph (6)) and practice directions (especially paragraph 4 of the practice direction to Part 52). Rule 52.3, paragraph (6), appears to lay down necessary conditions and not sufficient conditions for the grant of permission to appeal. Paragraph 4.5 of the practice direction (relating to case management decisions) is quite inconsistent with the notion that a litigant must be able to appeal as of right if only he can show that he would have a reasonable prospect of success.
19. However, I think it better to express no definite view on this point since it is not necessary for the disposal of this application. An opportunity will no doubt arise for the point to be considered on an occasion when this court has to consider an application for permission to appeal from a High Court Judge when an appeal would have a reasonable prospect of success but might be disproportionate or inappropriate for some other reason.
20. I must, therefore, dismiss this application.
Order: application for permission to appeal dismissed.