England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Tuesday 16th October, 2001

1. LORD JUSTICE CHADWICK: This is an application for permission to appeal against an order made on 25 June 2001 by Patten J in proceedings brought by Stratal Ltd (a company registered in Mauritius) against Yellowsun Ltd and Mr David De Vere.
2. The claim in the proceedings is for possession of land to the east of Catherine Wheel Road, Brentford, of which the claimant is registered as proprietor with possessory title under the Land Registration Act 1925. The defendants, or one or other of them, claimed to be in actual possession of the land, around which there had been erected a fence.
3. On 1 June 2001 the proceedings came before Master Moncaster on an application by the claimant for possession under the provisions formerly contained in Order 113 of the Rules of the Supreme Court 1965 and now in CPR Part 8. For reasons set out in a note of judgment which has been included in the material before the Court, the Master made the order for possession sought. He ordered the defendants to pay the costs of that application, which he assessed at £2,029. He refused permission to appeal.
4. An appeal from the Master in those circumstances lay to the High Court. Yellowsun Ltd and Mr De Vere sought permission to appeal to the High Court. That application came before Patten J on 25 June 2001. By the order which he made that day, Patten J dismissed the application for permission to appeal; and he dismissed a related application for a stay of execution. He did so for the reasons which he set out in a judgment in which he examined the arguments of law advanced by Mr De Vere, on his own behalf and on behalf of Yellowsun Ltd, and explained why he took the view that they were not well-founded and gave rise to no reasonable prospect of success.
5. Put very shortly, the point which Mr De Vere sought to argue before the Master and before the judge was that a person with possessory title under the Land Registration Act who is not in actual possession of the land does not have a sufficient right or title to bring proceedings under Part 8 of the Civil Procedure Rules against a person who is in actual possession of the land. The point turns on the interpretation of section 6 of the Land Registration Act 1925.
6. The problem for Mr De Vere and Yellowsun, in the present case, is that, on the admitted facts, the predecessor in title of Stratal Ltd - a company known as Wilson & Kyle Holdings Ltd - was registered as first proprietor with possessory title on 19 January 1993. Yellowsun's possession (or Mr De Vere's possession if distinct from that of Yellowsun) only commenced about 18 months ago. So that, at the time when Yellowsun or Mr De Vere went into actual possession, there was already an owner registered with possessory title at the Land Registry. Mr De Vere accepts, frankly, that he knew at that time.
7. The judge took the view that an appeal from the Master had no realistic prospect of success. In those circumstances he dismissed the application for permission to appeal to the High Court and dismissed the application for a stay of execution. Having refused permission to appeal, he had no alternative but to dismiss the application for a stay of execution; because if there were to be no appeal, there could be no foundation for a stay of the order in the meantime.
8. It is from that order of 25 June 2001 that Yellowsun Ltd and Mr De Vere seek permission to appeal to this Court. The grounds of appeal in the Appellant's Notice dated 2 July 2001 are that the appeal raises an important point fundamental to the law of real property, and an important point of practice as to the use of Part 8 proceedings in claims of this nature.
9. Clearly those grounds recognise - and seek to address - the need to satisfy section 55(1) of the Access to Justice Act 1999. That section provides that where an appeal is made to the High Court and on the hearing of the appeal the Court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from the High Court's decision unless the Court of Appeal considers that the appeal would raise an important point of principle or practice or that there is some other compelling reason for the Court of Appeal to hear it.
10. I am not required on this application, however, to address the question whether the conditions set out in section 55(1) of the 1999 Act are satisfied. The reason why that question does not arise is that section 54(4) of the same Act provides in terms that:

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

11. Section 54(1) enacts that rules of Court may provide that any right of appeal to (amongst other tribunals) the High Court may be exercised only with permission. Rules under that subsection have been made which have that effect.
12. The position therefore, under section 54(4), is that no appeal lies against a decision of the High Court refusing permission to appeal to itself. The words in parenthesis in section 54(4) provide no escape from that conclusion in a case like the present. No appeal can be made against the decision of the Court to refuse permission to appeal.
13. The position is explained in a short passage in Clark (Inspector of Taxes) v Perks [2000] 4 All ER 1 at 6, and [2001] 1 WLR 17 at paragraphs 19 and 20. After setting out the words of the section, Brooke LJ, giving the judgment of the Court, went on to explain that those words meant what they said. He said this:

"In his judgment in Riniker's case ... Robert Walker LJ explained that this court, whose jurisdiction is wholly statutory, has no inherent jurisdiction to hear an appeal against such a decision ..."

14. That is the position here, in so far as the appeal is an appeal against Patten J's refusal to grant permission to appeal to the High Court. But, in paragraph 20 of Clark v Perks, this Court went on to say this:

"On the other hand, if on such an occasion, the appeal court makes a further order, such as a costs order or an order refusing an adjournment, an appeal does in theory lie to this court, with permission, although it is likely to be a very rare case in which such permission would be granted."

15. Encouraged, perhaps, by those observations, Mr De Vere points out that the order of 25 June 2001 included a paragraph which dismissed the application then before Patten J for a stay of execution. He points out that that part of the order does not of itself fall within the prohibition in section 54(4) of the 1999 Act. That may well be so; but if the appeal is confined to an appeal against Patten J's refusal of a stay of execution it has to be regarded as having no prospect of success. The reason is obvious: if there is to be no appeal to this Court, there is no reason for a stay of execution of the order made by Master Moncaster pending appeal - just as there was no reason for a stay of execution of that order when Patten J refused permission to appeal from the order of Master Moncaster. In those circumstances, the further observations in paragraph 20 of Clark v Perks provides Mr De Vere with no assistance.
16. I have no alternative but to dismiss the applications made this morning.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)