COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
Deputy Costs Judge Jefferson
London, WC2A 2LL
B e f o r e :
LORD JUSTICE BROOKE
LORD JUSTICE DYSON
| 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 :
“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.”
“(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.
“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 …”
“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.”
“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.
Lord Justice Dyson:
Lord Justice Simon Brown: