England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
(Mr Justice Harrison)

		The Royal Courts of Justice The Strand London
		Wednesday 15 May 2002

Wednesday 15 May 2002

1. LORD JUSTICE LATHAM: This is an application for permission to appeal a decision of Harrison J on 19 December 2001. He refused to remove a stay which was automatically imposed by the Civil Procedure Rules Part 51, Practice Direction paragraph 19-1, as a result of the fact that the proceedings had not come before a judge at a hearing or on paper between 26 April 1999 and 25 April 2000.
2. The background dispute is between a property owner and the council tax authority, and in form related to council tax raised in respect of 18 dwelling-houses in the district council's area. I am told that the issue in fact is one which affects a substantially greater number of houses owned by the applicant and maybe by others.
3. The applicant contended that it was exempt from council tax on the grounds that the properties were in such a condition that they required structural repair works or structural alterations. That issue was determined ultimately by Nottinghamshire Valuation Tribunal on 3 November 1997, when it concluded:

"On the basis of the available evidence, the tribunal finds that each of the appeal properties requires the carrying out of various works which can be categorised as improvements, repairs and decoration. The tribunal does not consider that it has been shown that the properties require structural repair works or structural alterations."

4. The applicant appealed that decision to the High Court on 1 December 1997. The case had a slightly chequered procedural history and there is no doubt that problems arose in relation to tracing the relevant file in the court office.
5. The fact remains, however, that nothing occurred in relation to that appeal until after 23 December 2001, which was when the council obtained liability orders in the magistrates' court in respect of those properties. In other words, no attempt had been made by the applicants to revive the appeal, even though they had been subjected to the stay automatically under the Civil Procedure Rules.
6. Harrison J, having considered the matter, concluded that there was no proper explanation for the delay which could justify his exercising his discretion to permit the appeal to continue, but in particular he concluded that there was in any event no real prospect of success in the underlying appeal.
7. Before me today, Mr Cranfield has realistically accepted that he cannot challenge on the material that the court has the judge's conclusion that there was no proper justification for the delay. However, he submits that delay is merely one of the matters to which the court has to have regard in exercising its discretion, remembering always that the Civil Procedure Rules require that justice should ultimately be the objective. He submits that there is in the underlying appeal a prospect of success which cannot be described as fanciful and that the stay, if maintained, would therefore preclude the applicant from pursuing what could be a proper appeal; that that would cause injustice and that there is no relevant prejudice to the council. If the appellant's case be right, then he should succeed on appeal. The prejudice to the council is simply that it has had to maintain the file, effectively, in relation to this appeal and have the appeal as an outstanding issue. It follows, it is said, that the prejudice to the council is not of such significance as to justify the conclusion that it should outweigh the injustice to the applicant if he is not permitted to pursue the appeal.
8. There are, however, it seems to me, other factors which have to be taken into consideration. First, it is, as has been said before in this court, necessary that the applicant in this position should be able to show that it is just and proportionate for the appeal to be permitted to continue. That involves consideration of the court time which is to be expended if the appeal is pursued and the consequences to other litigants of that time being taken up by this appeal. That undoubtedly requires consideration of the merits of the appeal and it would not necessarily be, in those circumstances, appropriate to approach the matter on the basis that provided the applicant can show a real prospect of success, he should be permitted to proceed. That is the appropriate test for a different case management application, namely one where the court is asked to dismiss a claim under Part 24. The fact is that the court has always to consider the underlying merits of the appeal, in order to determine whether it is appropriate for the matter to continue, in a rather broader way than that particular test will require.
9. As it happens, in this case I have come to the clear conclusion that the views of Harrison J were correct. There was no real prospect of this appeal succeeding on the basis of a Wednesbury challenge. It therefore follows that it is necessarily the case that the court would not consider it just and proportionate to permit this appeal to continue. It follows that in my judgment Harrison J was correct in concluding that the stay should not be removed. This application must be refused.
10. The applicant sought also an extension of time which was refused by the single judge on paper. This was a case in which the appeal crossed the Christmas holiday period and, although I agree with the single Lord Justice on paper that that of itself is not necessarily a proper excuse for delay which should justify the grant of an extension of time, nonetheless it seems to me that it is more satisfactory in this case to deal with the matter on its merits, and accordingly I grant an extension of time for that purpose.
ORDER: Application for extension of time allowed. Application for permission to appeal refused. (Order not part of approved judgment)