England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(MR JUSTICE LIGHTMAN)

		Royal Courts of Justice Strand London WC2 Thursday, 24th May 2001

Thursday, 24th May 2001

1. LADY JUSTICE ARDEN: This is an application by Mr and Mrs Tracy for permission to appeal and a further application for a review of decisions made by Master Joseph. I will explain a little about the background and then deal with the review first.
2. The applicants were plaintiffs in an action which they brought against Mrs Margaret Jones in the Chancery Division for removal of a sea wall. Mr and Mrs Tracy live on an island called Ynys Gaint of Anglesea in North Wales. The island is connected by the causeway to the mainland. In 1991 Mrs Margaret Jones, the defendant, erected a sea wall which blocked the access across this causeway. In July 1992 Mr and Mrs Tracy applied to the Chancery division for a mandatory injunction for the removal of the sea wall. The matter was heard by Mr Gavin Lightman QC, as he then was, sitting as a deputy judge of the Chancery Division. The judge refused the injunction and the order as drawn provided for the costs to be paid by the defendant in any event. Both parties were present at the hearing and the defendants were represented by counsel. Mr Lightman QC ordered the action to be transferred to Llangefni County Court. In due course the action was tried before Jacob J who found in favour of Mrs Jones. Mr and Mrs Tracy appealed to the Court of Appeal but their appeal was dismissed by the Chadwick LJ and Buxton LJ on 17th February 2000.
3. In November 2000, the defendant became aware that the order of the 20th July 1992 made by Mr Lightman QC provided for them to pay the costs of the plaintiffs' own unsuccessful for mandatory injunction. They applied to the judge, now Lightman J, for an order varying his original costs order. Lightman J gave directions on 7th December 2000. He directed Mr and Mrs Tracy to send to the Court and to the defendants solicitors Edward Hughes in writing any submissions in writing with any supporting evidence on or before 4 pm on 20th December 2000. He then directed the defendant solicitors should send any response to those submissions to the court and to Mr and Mrs Tracy not later than 10th January 2001, and that Mr and Mrs Tracy should send to the Court and Messrs Edward Hughes their submissions in reply not later than 4 pm on 22nd January 2001.
4. Mr Hughes made submissions, and on 16th January 2001 the judge wrote to the parties as follows:

"I have raised before me a question relating to an interlocutory order which I made as long ago as the 20th July 1992. I had before me an application for an interlocutory mandatory injunction made by the Claimants. I made an order dismissing that application and refusing the Claimants' leave to appeal (I also transferred to the case to Llangefni County Court). The Court of Appeal likewise refused leave to appeal. The issue raised is what order I made as to costs. The order that I would have made in the ordinary course would have been an order that the unsuccessful Claimants do pay the Defendant's costs of the application in any event. It is practically inconceivable that I would have ordered the Defendant to pay the Claimants' costs of the Claimants' unsuccessful application. Yet the form of order drawn up by the Court contained a direction that the Defendant should indeed pay the costs. The question raised before me is whether this must have been a slip. A clear and obvious (and indeed in my view only) explanation is that this is so and that the registrar or associate who drew up the order made a mistake. This conclusion is supported by the contemporaneous handwritten note of Mr Lloyd Williams of R Gordon Robert Laurie & Co, the letter dated the 29th July 1992 written by Mr Williams to the Defendant and the endorsement on Counsel's brief dated 6th August 1992.

When the matter was originally raised before me, I expressed this as my provisional view, but I invited the Claimants if they so wished to make submissions to me either orally or in writing. The Claimants chose to make them in writing, and I received submissions in writing from both parties. I have carefully read the submissions of the Claimants. I can see nothing which provides any basis for taking a different view. The fact that the error in the order was not adverted to by the learned Lord Justices in the Court of Appeal does not help; it was not a matter of relevance to their decision.

In short there was a slip in the order. It has apparently subsequently been corrected, but in case any question exists as to this correction I have jurisdiction even now to correct it and do so and I therefore direct that the order should read that the Claimants should pay the Defendant's costs of the application in any event.

I further direct that this decision should be placed on the court file in Llangefni County Court."

5. The claimants then wrote to the judge on 24th January 2001 asking for permission to appeal and pointing out that they had been given until 22nd January 2001 to respond and that the directions so provided. On 24th January 2001, the judge replied as follows:

"By a letter faxed to me dated 24th January 2001, Mr and Mrs Tracy wrote to complain that I had made my decision in this matter before I had received their submissions in reply. I regret when I gave my decision, I did not have in mind that there was an arrangement reached entitling Mr and Mrs Tracy to make further submissions in writing up and until the 28th January 2001. If I had had that matter in mind, I would of course have deferred giving my decision until then. On receipt of the letter dated the 24th January 2001, I instructed my clerk to inform Mr & Mrs Tracy that in view of this oversight I intended to reconsider my decision in the light of their further submissions and to invite them to make these further submissions. On the 24th January 2001 my clerk accordingly telephoned Mrs Tracy and told her that that I would review my decision in the light of their further submissions and invited her to let me have them. Mrs Tracy declined that offer and said that they wished to proceed with their application to appeal to the Court of Appeal. In view of the position taken by Mr & Mrs Tracy, I am disabled from reviewing my decision in the light of any further submissions from them and I must accordingly confirm my previous decision.

As regards their application to me for permission to appeal, I refuse that application. My reason is that they have no arguable grounds for an appeal."

6. I turn first to the review of the decisions which Master Joseph has made. He has refused to set down before the Court of appeal two applications. The first is an application dated 3rd March 2000, and amended on 3rd May 2000 to have effectively a rehearing of the appeal which was heard by Buxton LJ and Chadwick LJ on 7th February 2000. They wish, among other points, to argue that the case should have been heard by three Lord Justices in the appeal but they also wished to argue that there were violations of the rights conferred on them to by articles 6 and 14 of the European Convention of Human Rights.
7. As Mr and Mrs Tracy will appreciate, the appeal which was heard by Chadwick LJ and Buxton LJ was conclusively dealt with on 17th February 2000. The normal position therefore is that if they wish to take any further steps in relation to that matter they would have to consider if they have a further right of appeal. I now deal with the two points on which Mr and Mrs Tracy rely, firstly, that the case ought to be heard by a Court consisting of three Lord Justices and, secondly, that they have a new right under the European Convention of Human Rights which enables them to make a fresh application.
8. So far as the first point is concerned, the position is that under section 54(4) of the Supreme Court Act 1981 the Court of Appeal is duly constituted if it consists of two judges when hearing an appeal from the county court and, therefore, it would not be possible for the master to have set down a rehearing of the appeal simply because it was heard by two Lord Justices on the first occasion.
9. Taking the second point then, I move to consider whether or not it is possible to apply for the appeal to be reheard because of the claim made under the Human Rights Act 1998. Section 6 of that Act deals with acts of a public authority and section 6(2) of that Act provides that in this section public authority includes a court or tribunal, so the Court of Appeal is a public authority. Section 7 provides that if a a person who claims that a public authority has acted in a way which it is made unlawful by section 6(1), that is, acts in a way which is incompatible with his Convention rights, may bring proceedings against the authority under this Act in the appropriate court or tribunal.
10. However section 9 says:

"Proceedings under section 7(1)(a) in respect of a judicial act may be brought only-

(a) by exercising a right of appeal;

(b) on an application... for a judicial review; or

(c) in such other forum as may be prescribed by rules."

11. That means that if Mr and Mrs Tracy wish to assert that the hearing of the appeal was in violation of their Convention rights, they would have to do so by exercising a right of appeal. That is the only right given to them by the Human Rights Act 1998.
12. There is a further difficulty. The Act was passed in 1998 but the relevant provisions of the Act did not come into force until 2nd October 2000. Section 22(4) states with one immaterial section that section 7(1) does not apply to an act which took place before the coming into force of section 7. Section 7 came into force on 2nd October. The decision on the appeal was on 17th February 2000, and thus the act of which Mr and Mrs Tracy complain occurred before the Act came into force and therefore the Act could not on any basis give them a right to bring proceedings in this jurisdiction. Accordingly, as I see it, the learned master was right to direct that that application should not be set down before the Court of Appeal.
13. The next matter with which Master Joseph dealt was to to refuse to set down two furthers applications; first, an application for leave to appeal the order of His Honour Judge Gareth Edwards QC dated 12th May 2000 and his further decision on that same date refusing to adjudicate on the letter, namely an application for contempt for non-compliance with the earlier order of the Court.
14. It is clear from the correspondence that Master Joseph took the view that the Court of Appeal had no jurisdiction to hear appeals from His Honour Judge Gareth Edwards QC. The position is that since the appeal in this matter was heard by Chadwick LJ and Buxton LJ, the rules of the Court have changed, and since 2nd May 2000 appeals from the county court have in many cases now to be directed to the High Court, and this Court does not have jurisdiction. The relevant legislation is the Access to Justice 1999 (Destination of Appeals) Order 2000 (S.I. 2000 No. 1071). Article 3 of this order provides that subject to articles 4 and 5, and paragraph (2) of the article, an appeal should lie on the decision of a county court to a High Court. Article 4 provides that an appeal should lie to the Court of Appeal where the decision to be appealed is a final decision and clearly allocated by a court to the multi track under the civil procedure rules. Neither article 3(2) nor article 5 is relevant to the present application.
15. The orders which His Honour Judge Gareth Edwards gave were made in new proceedings which Mr and Mrs Tracy had brought to set aside the judgments given against them in the proceedings commenced in 1992. His Honour has struck out those proceedings as disclosing no reasonable prospect of success so that is a final order. But the difficulty facing Mr and Mrs Tracy is that those proceedings were never allocated by the Court to the multi track.
16. In those circumstances, in my judgment, Mr and Mrs Tracy face an insurmountable obstacle. This Court has held in Clark v Perks [2001] 1 WLR 17 that it has no jurisdiction to deal with an appeal direct from a circuit judge unless the case was indeed allocated to the multi track. In my judgment, therefore, the master was right to decline to set down the appeals and in respect to those particular matters, the applicants will have to make their application to the High Court. I should make the point that the applicants made an application for repayment of the court fee on setting down their application. I am not in a position to direct that repayment but insofar as it is of any assistance, I would recommend that it should be repaid since they had made the application under this misapprehension that the right course for them to take was to make their application to this Court. They have asked me if I could go further and extend the time for applying to the High Court but I regret that is not a course open to me. It will of course be open to Mr and Mrs Tracy to explain how they came to make this application and other matters.
17. I now go to the second application before me which arises out of the order made by Lightman J. There is a notice of appeal filed in the second application that I should give permission to appeal. It is plain from the correspondence that I have read that the learned judge himself refused permission to appeal. There are a large number of grounds of appeal set out in section 7 of the appellants' notice. It is said that the judge had no recollection of what had happened; that he gave his decision in breach of the directions that he had given for submissions and that is a violation of their rights under article 14 of the European Convention on Human Rights; he gave a provisional view without reference to intervening factors, and that he did not take into account that the order of 23rd July 1992 had been sealed and that there was no formal application within the rules of Court. Just pausing on this point, the judge did give a provisional view in a letter which I have not read out but that is something which a judge is entitled to do if he feels it is helpful, and it is of course only a provisional view of the rules, and it is one which the judge was well to reconsider in the light of submissions. Judges are well practised in putting on one side views which they might have come to and looking at matters afresh.
18. So far as the jurisdiction of the Court is concerned, I think it is quite clear that the Court does indeed have power to correct errors in orders. The applicable rule is Civil Procedure Rule 40.12. Paragraph (1) of this rule provides that the Court may at any time correct an accidental slip or omission of a judgment or order and paragraph (2) provides that a party may apply for a correction without notice. The practice direction which supplements that rule provides that a party may apply for correction where an order contains an accidental slip or omission, and then says that the application notice which may be an informal document such as a letter should describe the error set out the correction required and the application may be dealt with without a hearing (1) where the applicant so requests (2) with the consent of the parties or (3) where the court does not consider that a hearing would be appropriate. Clearly, the judge took the view that it was not appropriate to have a hearing. He gave directions indeed for the final submissions and then gave his decision. Paragraph 4.4 provides that if the application is opposed, it should, if practicable, be listed for hearing before the judge who gave the judgment or made the order.
19. What is clear from the practice direction is that there does not need to be a formal application notice. It can be dealt with by an informal request in a letter and moreover Part 40 makes it clear that in the first instance an application does not have to be served on the other party. In fact what happened in this case is that, quite correctly, the papers were submitted to Mr and Mrs Tracy so they had an opportunity to deal with the point. Although the previous rules provided for an order to be made by summons they were not applicable when the matter was raised in 2000.
20. Moving on in the grounds of appeal, it is then stated that the order had been tampered with by unlawful alteration and a copy was placed on the Llangefni County Court file. This is a matter which the judge alluded to in his correspondence. It appeared that somebody altered the copy of the judge's order and before the judge made his order making corrections under the slip rule. It is not clear how this happened. It is most unfortunate that it should have happened but the fact is that the critical question for the applicants is whether the judge was right to come to the conclusion that he did. It is quite clear that an official alteration could have no effect; the only thing that could have an effect would be a direction by the judge himself.
21. The applicants then go on to argue in their grounds of appeal from a letter dated 17th August 1992 that was never sent or delivered but it arrived at Chancery Chambers, and there is proof that it was not acted upon but there is no reply in existence and no amended order was served. Again, the critical question and hurdle which Mr and Mrs Tracy have to face is the judge's direction in his letter dated 24th January 2001 and the 1992 letter and that cannot assist them in this matter.
22. The applicants then refer to the fact that the claimant appealed the order as drawn and were refused by two Lord Justices of appeal. In other words, the order has been to before the Court of Appeal before. The answer to that point is that the complaint made to the Court of Appeal in 1992 was that the judge had wrongly refused to grant an injunction. The matter now raised is to a completely different part of the order. What is said is that the order and does not accurately reflect the order as made by the judge. That is an entirely separate matter.
23. The applicants then go on to say in the grounds of appeal that by accepting the order as drawn for eight and a half years, exhibiting it to her affidavits and including it in her bundles, which is not disputed, the defendant has waived her right to any amendment of the order. Next there is a reference back to what happened in the Llangefni County Court. That claim cannot assist. The real point on which applicants rely is that it was not until they tried to enforce the order for costs against the defendant, that the defendant took any steps at all to have the order corrected.
24. Then again they complain about the procedure adopted by the judge but I have sought to show that it was open to the judge to take that step under the new rules.
25. I now come to the question whether there should be leave to appeal in respect of the judge's decision. The position is that in his second letter of 24th January 2001 the judge gave Mr and Mrs Tracy a further opportunity to make submissions to him. It would have been clear to Mr and Mrs Tracy at that point from the judge's letter of 16th January what factors were exercising the judge, namely what would normally have been done in a situation such as the judge found on 20th July 1992, of what would be an unusual order. Also, he had before him contemporaneous handwritten notes of the defendants' solicitors of the hearing on that dual recording (in note form) that the plaintiffs were paying the costs in any event. The judge also had a letter which I believe was a letter from the defendant's solicitor to the defendant reporting that an order had been made in those terms, and an endorsement on counsel's brief (which I have not in fact seen).
26. The judge therefore had a number of matters which were set out and which influenced him to the view that he expressed on 16th January. On 24th January the judge made it clear that he would reconsider that decision if Mr and Mrs Tracy of wanting to put in further submissions. Mr and Mrs Tracy today have put some points to me, the question of whether or not it was open to the defendant to take the steps so long after the order was made, and indeed whether there was any limitation bar, but they had an opportunity of putting all those points to the judge on 24th January 2001. It is not clear to me that all the points that they have put to me today were points which they had already made to the judge themselves. Moreover, it is possible that they would have wished to make submissions about the contemporaneous letter of Mr Lloyds Williams. That is a matter which they could have put to the judge had they wished to do so.
27. There would be no real prospect of success on appeal in saying that the judge would not have listened to their further submissions. The judge said he would do so, and I have already explained that judges are accustomed to putting things out of their mind and consider the matters afresh. As I see it, there is no prospect of success on appeal in saying that the judge ought not to have reached the decision on 16th January because the judge recognised that, and on 24th January he gave them the opportunity to put in further submissions.
28. I should point out that of course the judge has the jurisdiction to correct an order if it contains an accidental slip, and it is therefore a question whether or not there was such a slip and whether it was a proper exercise of the judge's discretion. It might be open, of course, to applicants to go back even now to Lightman J and ask for an extension of time to put in further submissions and new material. It is possible that they may wish to make an inquiry in Chancery Chambers here in London, where the order was made, to see if the associate's notes can be found. This might assist them before the judge because the judge only had secondary evidence of what the order he made as to costs was.
29. Putting the possibility of new material aside, the question which the judge had to decide was whether there had been an accidental slip. The judge felt the matter was clear. If Mr and Mrs Tracy do not themselves have any contemporaneous material which would contradict the solicitors' note made on that occasion, they have an uphill task in trying to persuade the Court that it was not an accident or slip. I do not consider that there is any real prospect of success on appeal in persuading the Court of Appeal that the judge's decision was wrong. In those circumstances, I dismiss this application too.
Application dismissed; copy of transcript to be provided to Mr and Mrs Tracy at public expense. (Order does not form part of approved Judgment)