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
QUEEN'S BENCH DIVISION
PORTSMOUTH DISTRICT REGISTRY
(Her Honour Judge Davies)

		Royal Courts of Justice Strand London WC2
		Friday, 2nd November 2001

1. LORD JUSTICE LATHAM: This is an application for permission to appeal which comes before the court in unusual circumstances. The applicant, who was the claimant in proceedings against Mr Murfitt, had his claim dismissed by order of Her Honour Judge Davies at the Portsmouth District Registry on 26th January 2001. The problem arises because the case was in the Queen's Bench Division but Her Honour Judge Davies was not approved under section 9 for the purposes of trying High Court actions. The presiding judge, Mr Justice Toulson, according to the documents that have been helpfully put before the court by the Treasury Solicitor on behalf of the Lord Chancellor's Department, appears (I say that word for the moment advisedly) to have transferred the case to the Technology and Construction Court, in which Her Honour Judge Davies was entitled to sit, and it was on that basis that it was considered that she would have jurisdiction to deal with the case.
2. There are both factual and legal issues which arise as to the precise circumstances of the transfer of the case, the consequences of the transfer and the consequential jurisdiction of Her Honour Judge Davies to deal with the case, which seem to me to raise issues fit for consideration by this court and, indeed, on one view of the matter, quite significant and important jurisdictional questions.
3. In those circumstances it seems to me that it would be right to grant permission to appeal. As I have indicated in argument, I do so with reluctance because this is a purely technical point which has been taken by a disappointed claimant and the consequence of the order that I have made is that the defendant will remain uncertain as to the outcome of the litigation for some time. The only consolation is that it is not a case where he was the person claiming money. The practical problem for him is that he has not received, as I understand it, the costs that were ordered to be paid. It may be that he would wish to make an application in that regard, there being no application before this court at the moment to stay that part of the judge's order.
4. For those reasons I give permission to appeal. I consider that this is a case in which the Lord Chancellor's Department, if so advised, should have permission to intervene. If the Lord Chancellor's Department does not choose to intervene, it seems to me that the court could properly ask the Treasury Solicitor to consider providing an amicus curiae for the purposes of the argument before the full court. This case should be tried by a court of three Lords Justices.
5. I think consideration ought to be given to identifying the precise factual issues and consideration given as to how they might be resolved. It seems to me that the statements before the court at the moment are the statements which should be used to determine the issues. I direct that the court proceeds simply on the factual material which is at present before it and deals with the issues that way. I do not think it would be a proportionate approach to this case to spread it any further than that. I suspect the court is going to find it an unsatisfactory situation, but I think it is probably best left as it is.
6. The costs of today will be reserved.
Order: permission to appeal granted only on jurisdictional point in relation to judge's power to deal with case; Lord Chancellor's Department to have permission to intervene if so advised; case to be tried by a court of 3 LJJ (time estimate two days); court to proceed on factual material at present before it (Mr Slinn being entitled to put in a statement); costs reserved.