England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE THOMPSON)

		Royal Courts of Justice Strand London WC2 Thursday, 26th July 2001

Thursday, 26th July 2001

1. LORD JUSTICE PILL: This is an application by Mrs Markos for permission to appeal against a direction of Deputy Master Di Mambro made in April 2001. The direction was:

"Since Mr Justice Mitting refused permission to appear in open court, there is no further right of appeal to this Court: Access to Justice Act 1999 S.54(4), CPR 52.2, (3) and (4), CPR PD 52 para. 4.8 Clark v Perkes [2000] All ER 1."

2. Mrs Markos was seeking permission to appeal against a judgment of His Honour Judge Thompson given at Southend County Court on 29th January 2001. Mrs Markos has a boundary dispute with Mr Goodfellow. The judge's judgment is detailed. I have heard submissions this morning from Mrs Markos's son who, exceptionally, I have permitted to address the Court on his mother's behalf. Mrs Markos is a lady of mature years who is in Court and I am confident understood the proceedings.
3. Mitting J refused permission to appeal, as the Deputy Master noted, on 11th April. He did so in the course of a short judgment, to which Mr Markos has referred me. I do not propose to cite the passage concerned but it is at page 2 of the judgment, and page 23 of the bundle. What the judge in substance did was to accept an undertaking from counsel for Mr Goodfellow to apply to the Southend County Court to correct the order of the circuit judge in the sense which Mitting J found it to be in error. He stated that the order could be corrected, in the sense indicated, under the slip rule, CPR part 40.12. Having accepted that undertaking, Mitting J rejected the application for permission to appeal. The order of the Court following his judgment noted that:

"The Respondents/Defendants undertaking to apply pursuant to Civil Procedure Rules Part 40.12 to His Honour Judge Thompson to vary the Order dated the 29th day of January 2001."

4. The respect in which it is to be corrected and the variations permitted are not set out in the order. There is also reference by Mitting J awarding £2 damages to Mrs Markos. I am told that that sum has not been paid. The changes to the County Court order would be substantial.
5. Deputy Master Di Mambrio made an order which is entirely understandable in the circumstances. It is rare that a second appeal is permitted in circumstances such as these. Helpfully, the Deputy Master referred to the decision of this Court in Clarke v Perkes where guidance was given as to second appeals, the rarity with which permission to pursue them should be given and the circumstances in which such permission might be given. What the Deputy Master did was to adopt what would be the general approach in the circumstances.
6. In substance the complaint is against the judgment of Judge Thompson and the manner in which Mitting J dealt with the application for permission to appeal against it. The fact that I propose to grant permission does not involve any criticism whatsoever of the Deputy Master whose decision I have already indicated I fully understand. However, this is, in my judgment, one of those circumstances in which this Court should be prepared to consider a second appeal. I grant permission to appeal with reluctance. This is a dispute over a boundary. The amount of land involved is very slight and I know, as such advocates and with experience of county court litigation know, the costs and strong feelings which are often expended, very often to little good purpose. I am reluctant to give permission to appeal.
7. Before doing so I insisted that Mr Markos discuss the matter with his mother. I rose for a few minutes to enable him to do so. I wanted to be sure that she understood the possible implications in costs, in worry and in aggravation of the other side of this litigation remaining in existence, as it will, if I grant permission. I am satisfied that Mrs Markos understands that and wishes to pursue the application.
8. I am concerned, and that is why I grant permission about the procedure which was followed. I well understood Mitting J wishing to bring an end to matters and doing so in the manner he did to achieve proportionality. But the proper processes of the law are involved, and in my judgment it is arguable that the procedure which he followed was not as appropriate one in the circumstances. Having regard to the importance of the CPR being properly applied, it appears to me appropriate this is one of those rare cases in which the applicant ought to have the opportunity to put her points before the Court.
9. For those reasons I grant permission to appeal the order of the Deputy Master.
(Permission to appeal allowed; a stay on the enforcement of costs order dated 29th January 2001, pending the resolution of the appeal for further order, the condition of the stay that the appeal is pursued at all reasonable diligence)