England and Wales Court of Appeal (Civil Division) Decisions

		Neutral Citation Number: [2002] EWCA Civ 909
		Case No: B1/2002/0873

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
Lloyd J
Gibbs J
Deputy Costs Judge Jefferson

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th June 2002

B e f o r e :

LORD JUSTICE SIMON BROWN
LORD JUSTICE BROOKE
and
LORD JUSTICE DYSON
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Between:


	DR ADU AEZICK SERAY-WURIE	Appellant/Claimant
	- and -
	THE MAYOR AND BURGESS OF THE LONDON BOROUGH OF HACKNEY	Respondent/Defendant

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Lord Justice Brooke :

1. This court has now been involved in the latest stage of a long-running dispute between Dr Adu Seray-Wurie, who is chairman of the Hackney African Organisation (“the claimant”), and the London Borough of Hackney (“the council”). The matter comes before the court in an unusual way. On 6th December 2001 Deputy Costs Judge Jefferson made an order whereby he set aside a default costs certificate in the sum of £280,063 which had been obtained by the claimant on 2nd October 2001. The claimant sought permission to appeal against this order to a High Court judge, and at a hearing in court on 24th January 2002 Gibbs J, in a carefully reasoned judgment, refused permission to appeal. That would ordinarily be the end of the matter (see section 54(4) of the Access to Justice Act 1999 and CPR 52 PD para 4.8). The claimant, however, relying on the judgment of the court in Taylor v Lawrence [2002] EWCA Civ 90 at [54], [2002] 2 All ER 353, applied to a High Court judge for an order that the case be “re-opened for a hearing”.
2. On 19th March 2002 Lloyd J made a reasoned order on paper refusing this application. The claimant then sought an oral hearing of what he now described as an “application for permission to appeal”. At a hearing in court on 10th April Lloyd J made an order in the following terms (so far as are material);

“that under Part 51.14 of the Civil Procedure Rules the Appeal from the order of Deputy Costs Judge Jefferson dated 6th December 2001 (including the Claimant’s application … for an Order that the case be re-opened notwithstanding the refusal of permission to appeal by the Honourable Mr Justice Gibbs on 24th January 2002) be transferred to the Court of Appeal.”

3. Before he made this order Lloyd J told the claimant that he thought there was an important question as to whether the High Court had jurisdiction to entertain his application, and how the High Court should deal with cases like this if it did possess jurisdiction. He had decided that the point should be considered by the Court of Appeal, because only the Court of Appeal could give authoritative guidance on the point. It was always possible that it might take the view that he should not have transferred the matter, in which case there would be a regrettable delay while the case was sent back. The claimant then filed a fresh appeal notice in the Court of Appeal. I will refer to the contents of this notice, and to the question whether this court has any jurisdiction to deal with the matter, after I have described the history of this matter in rather greater detail.
4. In these proceedings the claimant has always acted in a representative capacity on behalf of himself and the other trustees of the Hackney African Organisation. This is a registered charity whose primary objective is the relief of poverty by promoting schemes which are of benefit to the community, particularly the needs of the African and other ethnic minorities. It occupied premises in Hackney under a 10 year lease granted to it by the council. In November 1992 the council issued proceedings against it whereby it forfeited the lease and sought possession of the premises on the grounds of arrears of rent and insurance premium contributions. The charity put most of the arrears in issue and made a counterclaim based on the contention that the council owed it money in relation to contracts for 52 projects which more than extinguished its claim for arrears of rent.
5. In the event the council repossessed the premises under powers granted to it by a compulsory purchase order, and the long-running litigation, which came to a head at a trial conducted by Judge Thornton QC on eight days between 21st February and 7th July 2000, culminated in an order made by the judge on 31st October 2000 granting the charity nearly £300,000 on its counterclaim. The judge decided that interest and costs should be dealt with at a subsequent hearing, which was fixed for 1st December 2000. On 23rd November 2000 the claimant filed and served a bill of costs claiming a total sum of £279,943.
6. We have not been shown the order made by Judge Thornton, but it led to the detailed assessment proceedings before the deputy costs judge with which we are now concerned. On 10th September 2001 the claimant filed and served his bill of costs in those proceedings, accompanied by a notice which stated that points in dispute must be served by 1st October 2001. On 2nd October he obtained a default costs certificate in the sum of £280,063 he now claimed. On 5th October the council applied for an order that this certificate be set aside. It maintained that the points of dispute had been sent by Royal Mail, Special Delivery on 28th September, and that the guaranteed delivery date was 1st October. It said that Royal Mail had attempted to deliver the package at the claimant’s address, but nobody was at the address to acknowledge the item. The package was therefore undelivered, and the document was held at his local Royal Mail enquiry office. The council also said that the documentation would not have passed through the letter box at that address, even if there had been an attempt to deliver it by hand. It appears that it came into the claimant’s possession on 6th October,
7. 28th September was a Friday, and 1st October a Monday. The claimant has taken the point that even if the document had been served by post on 1st October, it would have been deemed to have been served on 2nd October (see Godwin v Swindon Borough Council [2001] EWCA Civ 1478, [2001] 4 All ER 641 for the interpretation by this court of the effect of the deeming provisions of CPR 6.7(1)).
8. The council’s application was made under CPR 47.12 which provides, so far as is material:

“(1) The court must set aside a default costs certificate if the receiving party was not entitled to it.

(2) In any other case, the court may set aside or vary a default cost certificate if it appears to the court that there is some good reason why the detailed assessment proceedings should continue.”

CPR 47 PD.11 (being section 38 of the Practice Direction about Costs) contains further details about the procedure for setting aside a default costs certificate and the matters which the court must take into account.

9. It appears that the deputy costs judge did not give a judgment in the matter or give specific reasons for his decision, although he was aware of the rule and the practice direction and referred to the overriding objective in CPR 1.1. After setting aside the default costs certificate, he set out a timetable for steps to be taken in the detailed assessment and ordered each party to bear its own costs of the application to set aside.
10. The claimant sought permission to appeal against his order, and we have a transcript of the judgment of Gibbs J on the application. He said that the point at issue was whether there was any realistic prospect of a successful appeal against the setting aside of the default costs certificate. He took into consideration the fact that service of the defendants’ points of dispute was not effected by 1st October and that the default certificate was rightly obtained on 2nd October. On the other hand he said that an attempt had been made to serve in time, that within three days an application had been lodged to set aside the default certificate, and that the points of dispute in fact came into the claimant’s possession on 6th October. He thought it was difficult on the facts to imagine a more prompt application to set aside the certificate (for the significance of promptness in this context see CPR 47 PD.11, section 38.2(2)).
11. When the judge considered the effect of the overriding objective, he said that there was a clearly articulated dispute about the amount of costs. For the purposes of this judgment he was content to assume that the council had been late in submitting its points of objection, but it did dispute them and there was clearly a dispute to be determined. The overriding objective necessarily implied that dealing with a case justly included actually dealing with the case. If the deputy judge had made any other order, he would have shut out the council entirely from pursuing the disputed points in relation to costs, and both sides agreed that the amount of costs were very substantial indeed.
12. In these circumstances, whilst assuming that the disputed facts (some of which related to the hearing before the deputy costs judge) were found in the claimant’s favour, there was no possibility of any reasonable costs judge reaching any other conclusion. There was therefore no realistic prospect of an appeal succeeding. Permission to appeal was accordingly refused.
13. As I have said in paragraph 1 above, that would ordinarily be the end of the matter, because the Court of Appeal has no jurisdiction to entertain an appeal from a judge in a lower appeal court who has himself refused permission to appeal. On 1st March 2002, however, the claimant applied for an order that the case be reopened for a hearing because:

“the learned judge has impliedly overruled the Court of Appeal and had failed to take certain matters into consideration and by so doing had meted out serious injustice to the claimant. The case should be reopened. See Taylor v Lawrence, The Times, February 8, 2002 and claimant’s skeleton argument …”

14. In his skeleton argument the claimant sought to argue that the judge had been wrong in saying that the council had attempted to serve the document in time (because the effect of the Godwin decision was that service would have been deemed to have been out of time) and that there were procedural deficiencies and unfairnesses about the way which Gibbs J had dealt with the matter. It appears that the claimant had originally thought that he should be seeking redress from this court (because his skeleton argument is dated 12th February and headed “In the Court of Appeal”) but was told that this court plainly had no jurisdiction.
15. When Lloyd J originally dealt with this application on paper he made the assumption that the High Court had the same power to reopen its own decisions as the Court of Appeal (see Taylor v Lawrence). But he said that the grounds on which the claimant relied were that he disagreed with the judge’s decision on points which were argued before him (in particular the significance of the case of Godwin, which was cited to him). In those circumstances no good grounds had been shown for reopening the decision.
16. In Taylor v Lawrence a litigant complained that after his appeal to the Court of Appeal had been dismissed information had come into his possession which showed that his appeal had been dismissed in ignorance of a material fact. A five-judge division of the Court of Appeal, of which I was a member, was convened to consider whether the Court of Appeal had power to reopen an appeal after it had given a final judgment, which had been drawn up. In giving the judgment of the court Lord Woolf CJ said that the court possessed a residual jurisdiction to reopen an appeal it had already determined in order to avoid real injustice in exceptional circumstances. The material part of his judgment is at paras 54-57 in which he said:

“54. … The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.

55. One situation where this can occur is a situation where it is alleged, as here, that a decision is invalid because the court which made it was biased. If bias is established, there has been a breach of natural justice. The need to maintain confidence in the administration of justice makes it imperative that there should be a remedy. The need for an effective remedy in such a case may justify this court in taking the exceptional course of reopening proceedings which it has already heard and determined. What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy. The effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations. Where the alternative remedy would be an appeal to the House of Lords this court will only give permission to reopen an appeal which it has already determined if it is satisfied that an appeal from this court is one for which the House of Lords would not give leave.

56. Today, except in a few special cases, there is no right of appeal without permission. The residual jurisdiction which we have been considering, is one which should only be exercised with the permission of this court. Accordingly a party seeking to reopen a decision of this court, whether refusing permission to appeal or dismissing a substantive appeal, must apply in writing for permission to do so. The application will then be considered on paper and only allowed to proceed if after the paper application is considered this court so directs. Unless the court so directs, there will be no right to an oral hearing of the application. The court should exercise strong control over any such application, so as to protect those who are entitled reasonably to believe that the litigation is already at an end.

57. In due course the Civil Procedure Rules Committee may wish to consider whether rules or a practice direction setting out the procedure should be introduced.”

17. The question which Lloyd J referred to this court for its consideration is whether the High Court, when sitting as an appeal court, possesses a similar jurisdiction to reopen its decisions in exceptional circumstances in order to avoid real injustice. It appears to me that the same logic which drove the Court of Appeal in Taylor v Lawrence to hold that the Court of Appeal possessed such a power must also drive us to hold that the High Court, which also possesses an inherent jurisdiction to do what it needs must have power to do in order to maintain its character as a court of justice (see Taylor v Lawrence at [51] – [53]), possesses a similar power. The restrictions on the exercise of the power will be precisely the same. As Lord Woolf said at [55]:

“What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy.”

The present case, as Lloyd J correctly observed, gets nowhere near satisfying this extremely tough requirement, and in my judgment Lloyd J was right when he disposed of the application on paper in the way that he did.

18. It is not necessary for present purposes to express any view on the question whether Lloyd J possessed the power to transfer this matter to this court for decision, because it was clearly desirable that we should decide the point. On any future occasion, an application of this kind should be handled in the High Court on paper along the lines described by Lord Woolf CJ in Taylor v Lawrence at [56]. Whether such an application should be referred to a High Court judge or a High Court master will be a matter for the Civil Procedure Rules Committee to consider. The answer may depend on the anticipated volume of attempts made by litigants to have adverse decisions reopened, following this judgment and the judgment in Taylor v Lawrence. At all events there will be no right to an oral hearing if the application is refused on paper.
19. Nothing in this judgment should be interpreted as having any effect in relation to the reopening of decisions made by circuit judges sitting as an appeal court in the county court. Different considerations, and different procedural rules, apply in the county court, and we are not concerned with them on the present occasion.
20. For the avoidance of doubt, this judgment is free from the restrictions on citation contained in paragraph 6.1 of the recent Practice Direction.

Lord Justice Dyson:

21. I agree.

Lord Justice Simon Brown:

22. I also agree.