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
QUEEN'S BENCH DIVISION
(Her Honour Judge Elizabeth Steel
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London WC2 Monday 26th March, 2001

1. LORD JUSTICE CLARKE: This is an application for permission to appeal made by the first claimant, Mr Yaron Shalom, against the refusal of the claimant's previous application for permission to appeal by Her Honour Judge Elizabeth Steel sitting as a judge of the High Court on 21st July 2000. By that application the claimant sought permission to appeal an order of Master Tennant of 25th May 2000. Master Tennant had ordered that the particulars of claim against the fourth and fifth defendants be struck out and that the claimants pay the fourth and fifth defendants' costs assessed at £2,366.72. He refused permission to appeal on the ground that an appeal had no reasonable prospect of success.
2. The first claimant also applies for permission to rely upon the further evidence contained in a file marked "NEW EVIDENCE".
3. It follows from what I have just said that an appeal to this court would be a second appeal. The jurisdiction of the court to hear second appeals is significantly restricted by sections 54 and 55 of the Access to Justice Act 1999. I shall return to section 54 in a moment, but section 55 provides, so far as relevant, as follows:

"(1) Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that-

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it."

4. It follows that, assuming that the court would otherwise have jurisdiction to entertain this application, the court has no jurisdiction unless the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.
5. Henry LJ considered this application on paper. In refusing the application, he said this:

"This is an application for a second appeal - see CPR Rule 5.13 [by which I think he must have meant CPR Rule 52.13]. The appeal raises no important point of principle or practice, nor is there any compelling reason for the Court of Appeal to hear it. In any event, the pleading was insufficiently particularised, and disclosed no cause of action against the 4th and 5th defendants."

6. The applicant's case is pleaded in his particulars of claim. The claim centres around the purchase of a property in Golders Green green. The applicant wished to buy the property and reached agreement in February 1997 with the fourth and fifth defendants to buy it for £175,000 subject to contract. He engaged a mortgage broker, a Mr Justin Stannard, to arrange a mortgage. The property was subsequently purchased by a third party before completion and then remarketed at an asking price of £249,950. The applicant contends that that third party was Mr Justin Stannard, who is the sixth defendant in these proceedings.
7. The applicant makes allegations of fraud against all six defendants, although this application is only concerned with his case or proposed case against the fourth and fifth defendants.
8. The fourth and fifth defendants are referred to in paragraphs 17 to 21 of the particulars of claim, although as it appears to me it is far from clear from those paragraphs what the nature of the case is which the applicant would like to make against them. Paragraphs 36 to 38 of the particulars of claim are in these terms:

"36. The Fourth and Fifth Defendants colluded in conspiracy to defraud for their own personal gains.

37. The Fourth and Fifth Defendants knew full well of forged documents but they used them for their own personal gains.

38. The Fourth and Fifth Defendants signed fictitious contracts and documents and abetted in conspiracy to defraud the Claimants."

9. No further particulars of those allegations are provided in the particulars of claim.
10. The judge refused permission to appeal the order of Master Tennant striking out the particulars of claim on the basis that the particulars of claim did not reveal any reasonable grounds for bringing the claim against the fourth and fifth defendants. She also refused permission to appeal the order for costs on the basis that the claimants were served with relevant materials and given the opportunity to challenge the order by Master Tennant.
11. To my mind, on the materials before them, both the Master and the judge were plainly correct. The particulars of claim do not even now reveal any reasonable grounds for bringing this action against the fourth and fifth defendants.
12. The applicant has set out four grounds of appeal, although they essentially boil down to two points. The first is based upon the assertion that the applicant was unable to obtain documentary evidence in support of his claim because a previous solicitor was exercising a lien over the papers. The second is that the judge acted contrary to Article 6 of the European Convention on Human Rights in:

"... refusing to allow [the claimants] to amend [their] Appeal to insert the grounds of appeal ..."

13. This application faces a number of difficulties. The first relates to the jurisdiction of the court. As I have indicated, by his Appellant's Notice the applicant seeks permission to appeal the order of the judge refusing his application for permission to appeal against the decision of Master Tennant. Appeal against a refusal to grant permission to appeal is expressly prohibited by section 54(4) of the Access to Justice Act 1999, which provides as follows:

"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)."

14. Paragraph 4.8 of the Practice Direction which supplements Part 52 reads:

"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 and Rule 52.3(3) and (4)."

15. CPR 52.13(b) reads:

"appeal court means the court to which an appeal is made."

16. On the facts of this case the court to which an appeal was made was that presided over by the judge.
17. It follows, as it seems to me, that this court has no jurisdiction to entertain this proposed appeal and on that ground the application must be dismissed.
18. If for any reason that were wrong, the correct approach would be that identified by Henry LJ and set out in section 55(1) of the Access to Justice Act 1999 which I have quoted.
19. Given my conclusion that the particulars of claim do not even now reveal any reasonable grounds for bringing this action against the fourth and fifth defendants, I am quite satisfied (a) that this case does not raise an important point of principle or practice and (b) that there is no other compelling reason for the Court of Appeal to hear this proposed appeal.
20. It follows that no question of admitting any further evidence arises. However, if it were said that this court should admit further evidence on this application I would, for my part, refuse it because I am not persuaded that it could not, with reasonable expedition and reasonable efforts, have been obtained before the judge or indeed before the Master. In any event I have read the evidence and it does not seem to me to assist an argument either that this case raises any important question of principle or practice or that there is some other compelling reason for the Court of Appeal to entertain this appeal.
21. I would only add that I can detect no infringement of the applicant's human rights.
22. In all the circumstances, this application is refused.
23. I would only add this. The applicant has not appeared this morning to support his application. The application was to have been heard at half past 10. I was here at half past 10, as indeed was the fourth defendant, Mrs Dombey. I decided to put the application back to 12 o'clock to give the applicant an opportunity to attend. He has still not attended. It appeared to me that in those circumstances I should consider the matter on the materials before me. I have sought to do that. These applications are refused.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment) ____________________