England and Wales Court of Appeal (Civil Division) Decisions

Slot & Anor v Isaac [2002] EWCA Civ 481 (12th April, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Jack J
Judge Parry

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th April 2002

Lord Justice Brooke :

1. This is an application by the claimants Robert Slot and Anne Slot for permission to appeal against an order of Jack J made on paper on 7th November 2001 whereby he decided he had no jurisdiction to hear their application for permission to appeal against an order of Judge Parry made on paper in the Guildford County Court on 30th April 2001. By that order Judge Parry refused the claimants permission to appeal against part of an order of District Judge Enser made in the same court at a hearing for case management directions on 8th March 2001.
2. After Judge Parry made his order on 30th April, the claimants did not exercise their right to request him to reconsider his decision at an oral hearing. Instead, they sought to appeal to a High Court judge. On 16th July Judge Caitlin directed that their application for permission should be listed for an oral hearing before Judge Parry on 9th August. On 23rd July the claimants told the court that they did not wish to return to Judge Parry. Instead, they wished their application to be heard by a High Court judge. Eventually, after an abortive visit to this court, their application was placed before Jack J on 7th November.
3. In addition to holding that he had no jurisdiction to hear an application for permission to appeal against Judge Parry’s order, Jack J refused permission to appeal against Judge Caitlin’s order dated 16th July. He said that it was an order which was entirely appropriate in the circumstances. He ended his short written judgment by saying:

“The applicants are the authors of their own difficulties, for they have refused to use the procedure provided by the CPR, namely for a hearing of an application for permission to appeal, which may be before the same judge who has refused permission without a hearing. After this long hiatus the action should now proceed.”

4. By their grounds of appeal to this court the claimants explained that they did not wish to be heard by Judge Parry at county court level because they knew it would be hopeless after they had been turned down on paper. They continued:

“We have asked Reading District Registry by appeal two times now, can we take the route as the booklets state, and we have done before in another case of ours. We explained that our appeal came after seven days (the time limit) after Judge Parry and his order was final as within the rules. An appeal from this lies with permission from a High Court judge. We are not being allowed this route of appeal. As said although we have done so before (sic). We wish for the matter to be heard at High Court level.”

5. The claimants have shown us papers relating to the other matter to which they have referred. This was a county court action they had brought against the Hampshire County Council who obtained an order from District Judge Hervey on 2nd June 2000 whereby he struck out their action pursuant to CPR Part 24 on the ground that they had no real prospect of success. On 19th June Judge Parry refused permission to appeal.
6. On 18th September 2000 Rimer J made an order which, as drawn up and sealed by the court, granted the claimants permission to appeal from the order dated 2nd June (being the order made by the district judge). We have been shown, however, the transcript of his judgment, whereby it appears he seems to have thought that the claimants were seeking to appeal against a substantive order by Judge Parry granting summary judgment. If that had indeed been the case, no difficulties about jurisdiction would have arisen. The true position seems to have been ascertained when the time came to draw up Rimer J’s order. There is no evidence before us that any point on jurisdiction was taken by the county council before Laddie J.
7. However that may be, what happened on another occasion cannot give a court jurisdiction which it does not in fact possess. On 30th April Judge Parry represented the “appeal court” within the meaning of CPR 52.1(3)(b) for the purpose of the claimants’ proposed appeal from the order of District Judge Enser, and he refused permission to appeal. By section 54(4) of the Access to Justice Act 1999, Parliament has expressly provided that:

“No appeal may be made against a decision of a court under this section to give or refuse permission.”

In other words, it is not open to a dissatisfied litigant to seek permission from a High Court judge to appeal against a decision of a circuit judge to refuse permission to appeal from a decision of a district judge.

8. In bracketed words at the end of section 54(4) Parliament explained that:

“this subsection does not affect any right under rules of court to make a further application for permission to the same or another court.”

These rights were conferred by CPR 52.3(3)-(5) which provide that:

“(3) Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court.

(4) Where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing.

(5) A request under paragraph (4) must be filed within 7 days after service of the notice that permission has been refused.”

9. The combined effect of these provisions is that after a lower court makes a decision with which a litigant is dissatisfied and itself refuses an application for permission to appeal, the litigant:

i) May make a new application for permission to appeal against the original decision (and not against the decision to refuse permission to appeal against that decision) to the appropriate appeal court (in this case a circuit judge);

ii) May, if the circuit judge refuses permission to appeal without a hearing, request his decision to be reconsidered at a hearing;

iii) May not appeal to a further appeal court against the circuit judge’s refusal of permission to appeal against the decision of the district judge.

10. The effect of these provisions are succinctly set out in paragraphs 14 and 18 of the leaflet called “Routes of Appeal”, issued by the Civil Appeals Office, each of which explains that:

“If the circuit judge refuses permission to appeal without a hearing, a request may be made for an oral hearing. If, at a hearing, the circuit judge refuses permission to appeal to himself, no further right of appeal exists.”

11. I also explained the effect of these provisions in my judgment in Tanfern Ltd v Cameron-Macdonald [2001] 1 WLR 1311 at para 20 where I set out the procedure which might lead up to an oral hearing at the “appeal court” and then said:

“If at that hearing the appeal court refuses permission to appeal, then no further right of appeal exists and that is the end of the matter: section 54(4) of the Access to Justice Act 1999; PD 52, para 4.8.”

12. The present claimants did not understand that the new CPR appeals procedure limited their rights of appeal in this way. Instead, they believed that if a judge at one level made a decision with which they were dissatisfied, then whatever the content of that decision they were entitled to seek permission to appeal against it from a superior appeal court. Their grounds of appeal show that they were bolstered in that belief by the terms of the Court Service guide entitled “I want to appeal – The High Court or a county court”, which refers at page 8 to

“appealing against a decision made by a Circuit Judge in a county court matter, other than a final decision in a multi-track claim, your appeal will be dealt with by a High Court Judge …”

13. The Practice Direction to CPR 52 (“CPR 52PD”) contains some possible sources of confusion for non-lawyers who do not look beyond it to the primary or secondary legislation which contain the sources of the court’s jurisdiction in any particular matter. CPR 52PD paras 4.6-4.8 appear under the heading “Court to which permission to appeal application should be made”. Paras 4.6 and 4.7 contain no difficulty, but the draftsman of the practice direction then decided to omit any express reference to the power to request an appeal court to reconsider its decision to refuse permission to appeal at an oral hearing. Instead, he moved directly to the effect of a further refusal of permission at the oral hearing and explained (in para 4.8) that:

“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).”

14. This language led the claimants mistakenly to believe that there was a right of appeal from the decision of an appeal court to refuse permission to appeal if it had been made on paper and not at an oral hearing. Their confusion seems to have been compounded by CPR 52PD para 4.14 which summarises the effect of CPR 52.3 (4) and (5) and also prescribes that the request for reconsideration of the decision must also be served on the respondent within the 7-day period prescribed by CPR 52.3(5). The following words are then added:

“If no request is made for the decision to be reconsidered, it will become final after the time limit for making the request has expired.”

15. I imagine that this language was used because until the seven-day period expired, the refusal of permission to appeal on paper had the effect of what used to be called an order nisi, because it would have no effect at all if a request for reconsideration was made within the seven-day period. Unfortunately it seems to have been misunderstood by the claimants as meaning that they were not entitled to seek an extension of time (pursuant to CPR 3.1(2)(a)) for making a request for the reconsideration of Judge Parry’s order on paper. There is nothing in the rules to deny them that right. The effect of the Practice Direction is also set out on page 12 of the guide I have mentioned in paragraph 12 above. It, too, does not make it completely clear that there can be no further appeal (as opposed to a request for reconsideration) against the refusal by an appeal court of permission to appeal on paper.
16. It follows that Jack J was correct in holding that he had no jurisdiction in the matter, so far as the proposed appeal against the district judge’s order was concerned. This application should therefore be dismissed.
17. In future, if an application for permission to appeal is lodged at the High Court in circumstances where it is quite obvious that a High Court judge has no jurisdiction, it should be rejected quite summarily, by reference to this judgment. Since its rejection will in essence be an administrative act (because the court has no jurisdiction) there will be no necessity for any kind of reasoned judgment, even if a judge is consulted by the staff of the court to confirm their view of the matter. Compare Jolly v Jay [2002] EWCA Civ 277 at [19].

Lord Justice Laws:

18. I agree.

Lord Justice Keene:

19. I also agree.