COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
HIS HONOUR JUDGE WYN WILLIAMS Q.C.
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
| Uphill (Widow and Administrator of the Estate of Malcolm Ernest Uphill)
|- and -
|BRB (Residuary) Ltd.
Mr Robert O'Leary (instructed by Hugh James) for the Respondent
Hearing dates : 13th January 2005
Crown Copyright ©
LORD JUSTICE DYSON :
This is the judgment of the court.
"MLE spoke to Mr Crawford at Miller Fisher. I told him we were issuing proceedings and I needed the correct name. He confirmed it was BRB Residuary Limited. I asked if it was his address and he said yes."
i) should the district judge have set aside the order of 25 November 2002 extending time for service of the claim form until 1 April 2003? If not,
ii) was the claim form validly served 2 days after it was posted to Miller Fisher on 11 March, and if not, was the district judge right retrospectively to dispense with service of the claim form?
iii) (by a respondent's notice) was the district judge right to hold that the defendant had not waived the right to challenge the validity of the service of the claim form?
i) the order of 25 November 2002 should not be set aside;
ii) the claim form was not validly served but there were exceptional circumstances justifying the retrospective dispensing with service; and
iii) the defendant had waived its right to challenge the validity of service.
"Important point of principle or practice"
"Some other compelling reason"
"The restriction on second appeals is important because Parliament has made it clear that it wishes pretrial disputes in civil litigation to be dealt with, on the whole, at a level lower than this court. It may be that judges in the courts below may make orders which judges in this court would not have made, but the philosophy of the Civil Procedure Rules is to confirm and bolster the authority of the judges in the lower courts."
"was inserted to provide an ultimate safety valve. It would allow the Court of Appeal to entertain an appeal notwithstanding that the point was a "one-off" of no general import, if, for example, the decision sought to be appealed was so grossly erroneous or unfair that it would be an affront to justice to allow it to stand."
"Quite how securely the door to the Court of Appeal should be shut by narrowly confining CPR 52.13(2)(a) to new points or principle, and precisely what the interrelationship is between (2)(a) and (2)(b), are matters which may need to be subject to further and fuller argument if this Court is to be able to correct plain injustices."
(2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.
(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether.
The first ground of appeal
The second ground of appeal
The third ground of appeal