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 CHANCERY DIVISION
(Mr Justice Neuberger)

		Royal Courts of Justice Strand London WC2 Friday, 7th December 2001

Friday, 7th December 2001

1. LORD JUSTICE PETER GIBSON: This is an application by the claimant, Ronald Ogle, for permission to appeal from the order of Neuberger J on 1st August 2001. The judge thereby refused an application for permission to appeal against the order of Master Moncaster, who had struck out Mr Ogle's claim for negligence against two firms of solicitors, the defendants, Metcalfe Mather Pepper & Company and Bates Wells & Braithwaite. The judge first considered the application on 1st May 2001 at a without notice hearing. The judge was minded to grant permission to appeal, but before ruling on the application he decided that he would invite written representations from the defendant solicitors. When those representations were received he ordered a further hearing which the defendants were invited, but not compelled, to attend. At that further hearing in open court the judge refused permission to appeal and ordered Mr Ogle to pay the costs of the application, which the judge summarily assessed at £1,620. Mr Ogle asked the judge for permission to appeal. The judge doubted whether he had jurisdiction to grant permission to appeal but said that, if he did, he refused permission.
2. Mr Ogle has lodged an Appellant's Notice by which he seeks to appeal the entire order of the judge. All of the grounds of appeal and the arguments in the Appellant's Notice relate to the judge's decision on whether Master Moncaster was right in making the order which he did. Mr Ogle has in addition provided a lengthy skeleton argument of 110 paragraphs, very few of which deal with the question of jurisdiction. Mr Ogle was advised by the Civil Appeals Office that there was no jurisdiction for this court to entertain an application for permission to appeal from the refusal by Neuberger J to give permission to appeal and that he should confine himself to the question of costs if that was what he wished to appeal. But Mr Ogle insists that there is jurisdiction.
3. I am afraid that he is quite wrong on that. The position is most clearly stated in Part 52 Practice Direction, paragraph 4.8 of which says:

"There is no appeal from a decision of the appeal court, made at an oral hearing, to allow or refuse permission to appeal to that court. See section 54(4) of the Access to Justice Act 1999 rule 52.3(3) and (4)."

4. The expression "the appeal court" is made clear in paragraph 2 and 2A of the Practice Direction. By paragraph 2.1 the Practice Direction applies to all appeals to which Part 52 applies except where specific provision is made for appeals to the Court of Appeal. At paragraph 2A.1 a table sets out to which court or judge an appeal is to be made, subject to obtaining any necessary permission. In the table, where there is a decision of a Master of the High Court, the appeal is made to the High Court judge. So the appeal court in the present case was the High Court Judge, Neuberger J.
5. Further, the note in Civil Procedure (Autumn 2001) Volume 1 at paragraph 52.3.19 explains the position further:

"The effect of refusal of permission

Refusal of permission is, effectively, the end of the road. If both the lower court and the appeal court refuse permission to appeal, it is not possible to appeal to a higher court (eg the Court of Appeal) against that refusal of permission. This is the effect of section 54(4) of the Access to Justice Act 1999 and of paragraph 4.8 of the practice direction. The Court of Appeal, whose jurisdiction is wholly statutory, has no inherent jurisdiction to hear an appeal against the decision of a junior appellate court refusing permission to appeal (unless it can truly be said that there was no decision at all). See Riniker v. University College London [2001] 1 WLR 13 and Clark (Inspector of Taxes) v. Perks [2001] 1 WLR 17 at paragraph 20."

6. In Clark v Perks this court gave guidance in relation to the relevant point. Under the heading: "No power to appeal against a decision of a court to give and refuse permission to appeal", Brooke LJ giving the judgment of the court (consisting of myself, Brooke LJ and Robert Walker LJ) said this:

"19.Section 54(4) of the 1999 Act provides:

`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).'

20.These words mean what they say. In the judgment of Robert Walker LJ in Riniker v University College London (Practice Note) [2001] 1 WLR 13, with which Brooke LJ agreed, he explained that this court, whose jurisdiction is wholly statutory, has no inherent jurisdiction to hear an appeal against such a decision (unless it can be truly said that there was no decision at all, for which see Daisystar Limited v Town and Country Building Society [1992] 1 WLR 390, 394. 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."

7. Mr Ogle appearing before me in person today has sought to argue that this court must take into account the overriding objective. He refers to the note at paragraph 52.0.14 in Civil Procedure which states:

"Rule 1.2, which states that the court must seek to give effect to the overriding objective (see rule 1.1) when it exercises any power given to it by the Rules, or interprets any rule, applies to the provisions of Part 52 as to other parts of the CPR."

8. When I asked Mr Ogle to tell me which rule gave a relevant power or which required interpretation, he was unable to point to any rule other than the overriding objective itself.
9. The overriding objective must, of course, be taken into account when the court is exercising any power given to it by the rules or interpreting any rule. But in this case there is no rule to which that applies. The position is stated in the Access to Justice Act 1999. Whilst there are exceptions provided for by section 54(4) they have no application in the present case. They apply, for example, to the rule that when a lower court refuses an application for permission to appeal a further application for permission to appeal may be made to the appeal court. That is CPR 52.3(3). But that does not apply here because, as I have said, the Act prohibits an appeal against a decision of the court under the section to give or refuse permission. In my judgment the position is perfectly clear and is accurately stated in the passages to which I have drawn attention.
10. Mr Ogle also submits that the matter is now affected by the European Convention on Human Rights, with the Human Rights Act 1998 coming into force last year. I am afraid I do not see how that is engaged in this case. Presumably Mr Ogle relies on the right of a person to have a fair trial. Mr Ogle had his case considered by the Master, and his application to appeal from the Master was also considered by a High Court judge. I can understand that he is unhappy with the result that has been arrived at, but it is in my judgment impossible to say that he has not had a fair trial of his complaint. Every court is able to control the litigation put in front of it and, in a case where it would be a waste of time for there to be a trial, it has the right to stop the case by striking out. That is what has happened in the present case. In my judgment, therefore, there is no jurisdiction for this court to entertain the application for permission to appeal from the refusal by Neuberger J of Mr Ogle's application for permission to appeal to him. But Mr Ogle is, as I have indicated, able to make an application to this court for permission to appeal from the order for costs made against him by the judge.
11. In his skeleton argument Mr Ogle only refers to costs in a single paragraph, where he says that, as the substantive judgment was so hopelessly wrong, there were no grounds whatever to order the payment by him of costs. He has repeated that before me today. He submits this is a case where costs should not follow the event. That, I think, is an invitation by him that I should go into the underlying merits of the case. That, I am afraid, I cannot do and refuse to do. The fact of the matter is that permission to appeal was refused by the judge and the defendants were entitled to ask that their costs of Mr Ogle's application should be paid by him. I, of course, take note of the fact that they were not compelled to appear, but undoubtedly they were invited to appear and I can see no ground for saying that the judge erred in any way in the exercise of his discretion in following the ordinary rule that costs should follow the event. What the judge did was to allow only a proportion of the costs which had been claimed by the defendants. Those costs were £2,382, and the judge only allowed £1,650. I think that was an act of mercy by the judge. Certainly I cannot see any basis on which this court would be able to interfere with that exercise of discretion.
12. Seeing, as I do, no real prospect of success on an appeal on any of the grounds advanced by Mr Ogle, nor do I find any other compelling reason why this appeal should go ahead, I must dismiss this application.
Order: Application dismissed.