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 LAMBETH COUNTY COURT
(HIS HONOUR JUDGE GIBSON)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 25 October 2001

1. LORD JUSTICE SCHIEMANN: On 14 April 2000 District Judge Jacey made a possession order against Mr Tolabi. Mr Tolabi applied to set that order aside because it had been made in his absence. On 16 January 2001 that application came before District Judge Worthington. District Judge Worthington ordered that the application to set aside the order be dismissed and costs assessed at £288 be added to the arrears.
2. Mr Tolabi wished to appeal that order. However, in accordance with CPR Part 52 rule 3(1), such an appeal requires the permission of either the judge who has just given judgment or the next judge up the ladder, in this particular case His Honour Judge Gibson. Mr Tolabi therefore applied to His Honour Judge Gibson for permission to appeal. Mr Tolabi sought to persuade the judge that the figures for arrears, upon which the council had been working, were wrong for a variety of reasons which I do not need to examine. However, he failed to get judgment in his favour, even after an examination of the figures.
3. I have before me the order which is stamped by the county court as having been made by His Honour Judge Gibson. It reads, after the usual recitals:

"IT IS ORDERED THAT

Defendant's application for possession to appeal against order made 16 January 2001 be dismissed.

Defendant do pay Claimant's costs assessed at £290 to be added to arrears."

4. It is clear that the actual wording of the order contains a typing mistake. It should read, "Defendant's application for permission to appeal against the order made 16 January 2001 dismissed".
5. Mr Tolabi says they were talking about possession, it was a case about possession. He is right. He says that the judge meant to do something else, he was not refusing permission. However, it is totally unclear to me what else the judge could have had in mind in the sense that there was before him an application for permission to appeal. That was the only way in which the matter could come before him. Clearly, on the face of it, something was dismissed and the defendant, Mr Tolabi, was ordered to pay the costs. So the judge clearly felt that the defendant was the loser in the case.
6. The court has been supplied with a note of judgment, which was apparently made by counsel for the council. That note of judgment is hotly disputed by Mr Tolabi. It has not been signed by the county court judge and it does not seem to have been submitted to him. Mr Tolabi tells me, and he may well be right, that there is no transcript or audio record of what the judge actually said. That can happen. I am simply left with the general form of judgment. On its face, that judgment, judging by the order, is a refusal of permission to appeal. In those circumstances, the substantive matter (namely, should the order of District Judge Jacey be set aside) was one on which Mr Tolabi lost. He appears to have lost before District Judge Jacey, before District Judge Worthington and before His Honour Judge Gibson.
7. Mr Tolabi tells me that His Honour Judge Gibson told him, "You can go to the Court of Appeal and they will put it all right". I assume, for present purposes, although there is no record of this in the order of the judgment or indeed in counsel's note of what the judge said, that that is right. It is true that, in relation to the costs part of the judge's order, this court does have jurisdiction. As regards the main part of the order, which is what Mr Tolabi is concerned with, there is undoubtedly no right to appeal, even if His Honour Judge Gibson had granted permission to appeal in relation to the substance. That follows from the wording of the Access to Justice Act 1999 section 54(4).
8. One cannot guard against the possibility that a succession of judges have come to a wrong decision. But there is only a right of appeal against a decision of a judge where Parliament has given such a right. There is no such right in the present case so far as the possession proceedings are concerned. On the contrary, section 54(4) expressly forbids such an appeal to the Court of Appeal in circumstances such as the present.
9. However Parliament has not categorically forbidden an appeal against that part of the order of His Honour Judge Gibson which awarded costs against Mr Tolabi. That is because that part of the order has not yet been considered by any other judge. Only His Honour Judge Gibson has considered it. But, Mr Tolabi still needs permission to appeal against the costs part of the order. I can only go by the formal order which I have quoted. There is no indication on that order that permission to appeal against the costs part of the order below has been given. It is for me to consider whether or not I should give permission to appeal against the costs part of the order.
10. The jurisdiction of the court in such a case, and its approach, is dealt with in a case called Clark (Inspector of Taxes) v Perks [2000] 4 All ER 1. The relevant passage is on page 6 where Brooke LJ said, delivering the judgment of the court, that:

"An appeal does in theory lie to the Court of Appeal (against a costs order made when permission to appeal has been refused), if permission is granted, although it is only likely to be a very rare case in which such permission would be granted."

11. That accurately reflects the practice of the court. The only way in which a costs order could be successfully appealed is by going into the merits of Mr Tolabi's case in relation to the possession order. That is precisely what Parliament has forbidden this court to do.
12. Accordingly, this application will be refused.
Order: Permission to appeal refused.