England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Thursday, 26th April 2001

1. MR JUSTICE LLOYD: Mr Hutchings is the defendant in an action in the Cardiff County Court which was begun in 1998 by his neighbour Mr Parker. There had been previous litigation between them in 1997 in which Mr Hutchings was the plaintiff. Taking the two sets of proceedings together, there have been many hearings, including at least two previously in the Court of Appeal. A great deal of time, effort and money has been invested in the dispute on both sides.
2. The subject of the dispute is a boundary and its precise position. Mr Hutchings has a very strong sense of grievance about many aspects of the proceedings. What is directly the subject of his application today is an order made by His Honour Judge Graham Jones on 29th June 2000 at the conclusion of a hearing lasting several days spread over some months, which concluded, apart from judgment, with final submissions made by the respective advocates on a date which seems to have been 28th March 2000 (I get that date from paragraph 20 of the judgment). Judge Jones handed down a written judgment extending over 30 pages. At the end of his judgment he set out what he had in mind to order. We have a transcript of the proceedings which took place on 29th June, so we have been able to see how matters proceeded. By the order drawn up to give effect to his decision the judge declared the position of the boundary and gave directions for it to be marked out. The judge granted an injunction against Mr Hutchings trespassing on Mr Parker's land but not so as to prevent Mr Hutchings from exercising certain rights reserved by a transfer mentioned in the property register. He ordered Mr Hutchings to pay £500 damages for trespass. He also ordered Mr Hutchings to pay Mr Parker's costs and to pay £10,000 on account of those costs, and he refused permission to appeal.
3. Mr Hutchings was represented by counsel on that occasion, as he had been during the trial. After his counsel, Mr Walters, had applied to the judge for permission to appeal and the judge had refused to grant it, some attention was given to the question of a further application to the appeal court. I use that phrase deliberately and neutrally as to which court that was to be. Counsel was aware that a new regime for appeals had been introduced on 2nd May 2000, but does not seem to have been aware, or fully aware, of all the details. Mr Walters is recorded as having said that he believed there was power to provide for appeals to go to a single judge of the High Court instead of the Court of Appeal, was not sure whether this had been exercised, but believed that it might apply to case management decisions and decisions in fast track cases. It is convenient to read a passage from the transcript in full because of Mr Hutchings' reliance on it, at 22D to 23A. It starts with Mr Walters:

"The understanding is that it may apply to certain case management decisions and certain fast track decisions. I don't know if I could ask if your honour feels you have power to indicate that this was treated whether retroactively or not, because I think there is no order, as a multi track case, because I understand there are queries of that sort being raised by the civil appeals office of the Court of Appeal. It is difficult to know how it will be dealt with on appeal. I would understand this would go to the Court of Appeal, not a single judge, but I think it may require some indication from your honour. I can find nothing express in the rules whichdeals with it. I don't know if your honour has come across this point in the interim.

JUDGE JONES: The CPR were never applied, were they, and it was never allocated a track?

MR WALTERS: I have not seen any formal order which does so.

MR JEREMY: That is correct, your honour.

JUDGE JONES: I think that had it been allocated a track it would have been allocated to the multi track, would it not?

MR JEREMY: Absolutely, your honour, without any doubt.

JUDGE JONES: It was more than a day and, I am almost tired of saying it, it is a dispute about an entirely worthless piece of land and in that sense is of no significance having regard to the conduct of the litigation and the issues that arise and the length of my judgment. It is a matter for the multi track.

MR JEREMY: Undoubtedly, your honour, it would have been allocated.

MR WALTERS: Your honour, I agree entirely. It is just that obviously the matter will be raised and, of course, the damages at £500 may lead somebody to conclude otherwise, so I was grateful, I wanted an indication should that be raised, as I anticipate it will if the matter proceeds.

JUDGE JONES: No, I think it is entirely appropriate that it be considered as a multi track case. There is the injunctive relief I have granted and, of course, I declared the boundary."

4. What lay behind these remarks is Articles 3 and 4 of a statutory instrument called the Access to Justice Act 1999 (Destination of Appeals Order) 2000 made in April 2000 which came into force on 2nd May simultaneously with a new Part 52 of the Civil Procedure Rules dealing with appeals. The statutory instrument was made under Section 56 of the Act and no question arises as to its validity under that power. Article 3 (1) of the statutory instrument says this:

"Subject to Articles 4 and 5 and to paragraph (2) an appeal shall lie from a decision of the County Court to the High Court."

5. Paragraph (2) is not relevant nor is Article 5, but Article 4 is relevant and it is (relevantly) in the following terms:

"An appeal shall lie to the Court of Appeal where the decision to be appealed is (a) a final decision in a claim allocated by a court to the multi track under rules 12.7, 14.8 or 26.5 of the Civil Procedure Rules 1998."

(b) is a case which is not relevant.

6. Those in court on 29th June 2000 had it in mind that an appeal from a multi-track case lay to the Court of Appeal but in other cases lay to the High Court. They were also aware that the case had not been allocated to the multi-track albeit it was recognised that, had the occasion arisen to consider it, it would have been a multi-track case. The belief shared by those in court on 29th June that no allocation had taken place was confirmed by the office of the Court Service in December 2000 when the route was being considered.
7. It is right to pause on the question of the allocation. Article 4 of the statutory instrument refers to allocation by the court to the multi-track under three provisions: CPR 12.7 and 14.8 do not apply to this case although they show that the court has power to allocate even when it enters judgment, those cases being concerned with judgment in default or in admissions. Civil Procedure Rule 26.5 is the main rule about allocation. Allocation is carried out by order of the case management judge, usually on paper although a hearing can be held. When there has been an allocation, the court gives notice of allocation to all parties. The proceedings can later be re-allocated. The point of allocation is that, depending on which track applies, different rules for case management, and also in some respects costs, apply under Part 27 for the small claims track, Part 28 for the fast-track and Part 29 for the multi-track under the Civil Procedure Rules.
8. The present case having been started before 26th April 1999 was subject on that date to the transitional provisions of Part 51 of the Civil Procedure Rules. I will read the relevant provisions. Part 51 is an extremely short part which says that a Practice Direction may be made as to the application of the Civil Procedure Rules to proceedings issued before 26th April 1999. In the Practice Direction one finds a number of different provisions. The relevant one is paragraph 15 of which I will read sub-paragraphs (1), (2) and (4):

"(1) When proceedings come before a judge (whether at a hearing or on paper) for the first time on or after 26 April 1999, he may direct how the CPR are to apply to the proceedings and may disapply certain provisions of the CPR. He may also give case management directions (which may include allocating the proceedings to a case management track).

(2) The general presumption will be that the CPR will apply to the proceedings from then on unless the judge directs or this practice direction provides otherwise.

.....

(4) When the first occasion on which existing proceedings are before a judge on or after 26 April 1999 is a trial or hearing of a substantive issue, the general presumption is that the trial or hearing will be conducted having regard to the CPR."

9. Thus at the trial the judge could have given but did not have to give, case management directions including allocation.
10. In the present case final directions for trial were given at a hearing on 30th March 1999. At that time the trial was expected to start on 25th May 1999. We are told the actual starting date was later but that is what was then anticipated. Judge Jones was not asked to give case management directions or, at any rate, he did not allocate the case to a track at any time during the course of the trial or, subject to what I have to consider, after the trial. As the rules stood in 1999 at and after the start of the trial there would have been no particular point in making an allocation order. It was only when the new rules as to appeals came into force on 2nd May 2000 that the significance arose of a transitional case having been allocated (or not) to the multi-track. Judge Jones said:

" ..... it is entirely appropriate that it be considered as a multi track case."

11. But he did not in fact allocate it to any track, and his order,drawn up to give effect to his judgment, does not include any such direction. It may be that if he had been shown the provisions of Article 4 of the statutory instrument he would have ordered allocation to the multi-track. But whether he would have done so is speculation and he did not do so.
12. Mr Hutchings wanted permission to appeal against Judge Jones' order and he put in an appellant's notice. He was told that the appeal lay to the High Court because the case had not been allocated to the multi-track. The application came before Mr Justice Jacob who rejected it on paper. Mr Hutchings then exercised his right to renew the application orally. The oral application came before the same judge in October. Mr Hutchings appeared in person and Mr Parker was represented by a solicitor; we understand from Mr Hutchings that that was at the judge's direction made that morning. That application was also refused and the judge ordered Mr Hutchings to pay Mr Parker £250 costs for the solicitor's attendance.
13. Mr Hutchings has a strong sense of grievance about that process as well as about Judge Jones' judgment and other aspects of proceedings. As regards the application for permission to appeal, he tells us that the court staff lost his bundle and instead of asking him to replace it they asked Mr Parker's solicitors to produce a bundle, who did so but produced an incomplete one, and incomplete in a respect which must have prevented the judge from understanding the case properly. Mr Hutchings did not become aware of the incompleteness until ten days after the hearing. He also said that it was apparent from the transcript of Mr Justice Jacob's short judgment that he had not understood the case properly. This treatment fuelled Mr Hutchings' sense of grievance as to what had happened up to that time. Therefore he applied to the Court of Appeal. On 9th February he lodged an appellant's notice seeking permission to appeal against His Honour Judge Jones' order given on 29th June. The Court of Appeal office considered this and referred it to Deputy Master di Mambro who came to the conclusion that it was not open to the Court of Appeal to hear an application against Judge Jones' order since that had been dealt with in the High Court, and that the Court of Appeal was restricted to considering, at most, an application for permission to appeal in relation to the very narrow and limited matter of the costs order made by Mr Justice Jacob. In the light of this direction, which was communicated to Mr Hutchings, he has since lodged a further appellant's notice seeking to challenge the ruling that this court has no jurisdiction to grant permission to appeal from the order of His Honour Judge Jones. It is in those circumstances that Mr Hutchings has appeared before us today. He has argued his case forthrightly and with feeling but fairly, I would like to say, having regard to his impression that he has been tripped up by an unmeritorious technicality. He submits that Judge Jones clearly regarded the case as essentially a multi-track case and that he said so in the passage I quoted and moreover in the very context of considering the avenue for an appeal. He submits that what the judge said should be treated as intending to achieve and therefore, if by any means possible, as achieving the result he envisaged, namely that the appeal court should be the Court of Appeal rather than the High Court. I have a good deal of sympathy for that argument.
14. Clearly the judge and the advocates did not have the articles from the statutory instrument in front of them or in mind. Clearly they knew something of the current position but not the precise formula that applied. By that time the Court of Appeal had already given judgment in Tanfern Ltd v Cameron-MacDonald [2000] 2 All ER 801, which, as I recall, was reported very quickly after the decision was given on 9th May. It was in The Times very shortly thereafter. It was not reported in the Weekly Law Reports until after the hearing before the judge. The report in The Times - and it may also be the report in the All England Law Reports - had brought the position to the attention of the profession in a way that the promulgation of the statutory instrument by itself would not have done. However, whatever their means of knowledge, the judge and the advocates did not realise that the critical question was whether the case had been allocated or not. It is a matter of some speculation whether the judge would have ordered allocation to the multi-track. It seems that Mr Hutchings can argue with some force that it follows from the intention the judge expressed that he would have said, "Yes, if that is what is necessary I will order its allocation."
15. The position taken by the Court Service in 2000 at the stage when Mr Hutchings was first seeking permission to appeal, and by the Deputy Master of the Court of Appeal, is that the absence of an actual allocation is fatal. That is because Article 4 does not apply unless there had been allocation and therefore Article 3 does apply. The appeal is thus to the High Court and the application for permission to appeal was, on that footing, rightly made to the HIgh Court. Moreover, Section 54 (4) of the Access to Justice Act 1999 precludes any appeal against a refusal of permission. This was considered by this court in the case of Clark v Perks [2000] 4 All ER 1, a copy of which has been supplied by the Court of Appeal office to Mr Hutchings. This confirms that the Court of Appeal cannot review a refusal by a High Court judge to give permission to appeal a lower court's decision although it does identify the fact that the Court of Appeal can consider an application for permission to appeal against a new order made by that High Court judge such as in respect of costs. If the court service and the Deputy Master of the Court of Appeal are right the consequence follows that Mr Hutchings cannot ask the Court of Appeal for permission to appeal against Judge Jones' judgment.
16. I therefore come back to the question of allocation. Despite my sympathy for Mr Hutchings' contentions based on what passed between the judge and the advocates after judgment on 29th June, it seems to me that it all depends on whether the case was or was not allocated to the multi-track, and that the judge did not in fact allocate it. I say nothing as to the justification of Mr Hutchings' sense of grievance as to other aspects of the proceedings; that is not relevant to anything before us nor is it relevant whether he has arguable prospects of success.
17. We can only consider his application if the Court of Appeal has jurisdiction to do so under the relevant legislation. In my judgment it does not because of the particular course taken in relation to this case, subject as it was to the transitional provisions in the Civil Procedure Rules. Mr Hutchings says that if he had known the true position he would have tried to make sure that the case was decided before 2nd May 2000. It may be that that would not have been successful because the judge, having concluded the hearing at the end of March, clearly devoted a lot of time to it and might not have been able to give judgment in less than a month such as would have allowed Mr Hutchings to have given notice of appeal before 2nd May. If he had not given notice of appeal before that date the transitional provisions of the statutory instrument were such that the new regime would have applied. More to the point is the proposition that if the advocates and judge had known the true position at 29th June the judge may have made an allocation order allocating the case to the multi-track. The fact is that he did not.
18. Thus the only matter that would be within the statutory jurisdiction of the Court of Appeal is the question of the costs order made by Mr Justice Jacob when he refused the application for permission to appeal. Such an application is not before us, it would be out of time, and it is, on any footing, trivial since it would have to be put forward on the basis that the refusal to allow permission to appeal was right.
19. I should add that Mr Hutchings relied naturally on the Human Rights Act. It seems to me that Article 6 of the European Convention on Human Rights is not such as to enable us to construe Articles 3 and 4 of the statutory instrument differently. Since it only affects the destination of an appeal or an application for permission to appeal from Judge Jones' order I see no reason to suppose that Article 4 would be held to be inconsistent with Article 6 of the Convention.
20. I have some sympathy for Mr Hutchings by reason of the course taken on and since 29th June, but I cannot hold that this court has jurisdiction to accede to his application.
21. LORD JUSTICE JUDGE: I agree.
Order: Application refused