England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 December 2015

Lord Justice Moore-Bick :

Introduction

1. This is the judgment of the court.
2. On 26^th June 2015 Burton J. granted an application for leave to appeal from an arbitrators' award in a dispute between the appellant, Michael Wilson & Partners Ltd ("MWP"), and the respondent, a former employee, Mr. John Emmott, but then dismissed the appeal and by paragraph (5) of his order refused permission to appeal to this court. Section 69(8) of the Arbitration Act 1996 prohibits any further appeal if the judge at first instance refuses permission: see Henry Boot Construction (UK) Ltd v Malmaison Ltd (Manchester) Ltd [2001] QB 388.
3. This court has, however, felt constrained to recognise that it has what has been called a "residual jurisdiction" to set aside the judge's refusal to grant permission to appeal, if what appears to be a decision of the judge is no true decision at all. Potential examples are a decision made by a judge without hearing any argument or thinking that he is making it in one case but actually making it in another because he has muddled two separate cases in his mind, see North Range Shipping Ltd v Seatrans Shipping Corporation [2002] EWCA Civ 405, [2002] 1 WLR 2397, 1 All E.R. (Comm) 501, CGU International Insurance Plc v Astrazeneca Insurance Co Ltd [2006] EWCA Civ 1340, [2007] 1 All ER (Comm) 501 and Republic of Kazakhstan v Istil Group Ltd (No. 2) [2007] EWCA Civ 471, [2008] 1 All E.R. (Comm) 88, para. 11. This jurisdiction has never been invoked successfully, but that has not inhibited many losing parties from making the effort to invoke it.
4. MWP sought to invoke the jurisdiction in this case by filing a notice of appeal (in the form required by PD52A paragraph 4.2) asking for paragraph (5) of the judge's order to be set aside. Section 4 of that notice acknowledged that MWP needed permission to appeal and that it had not been given; accordingly, MWP sought permission to appeal.
5. That application for permission to appeal came before Longmore L.J. who, on 19^th October 2015, refused it as being totally without merit, with the result that, pursuant to CPR 52.3(4A)(a), MWP was not entitled to ask for the decision to be reconsidered at an oral hearing. The judge gave the following reasons for his decision:-

"The applicants seek to invoke the residual jurisdiction of the court to set aside Burton J.'s refusal of permission to appeal, but there was no procedural unfairness or refusal by the judge to engage in the arguments and his reasons for refusal (namely that there was no question of law of general importance which warranted the attention of the Court of Appeal) appear from the transcript."

6. This evoked a response on 27^th October from MWP that, notwithstanding the appearance of the appellant's notice, its application was not one to which CPR 52.3 applied. The decision of Longmore L.J. was therefore a decision to which CPR 52.16(6) applied and accordingly MWP was entitled to an oral hearing at which the order of 19^th October would be reconsidered. CPR 52.16(6) provides as follows:-

"At the request of a party, a hearing will be held to reconsider a decision of—

(a) a single judge ….

. . .

made without a hearing"

7. The papers were again referred to Longmore L.J., who ordered that the case be listed for oral argument on the question:-

"whether, on an application to set aside the refusal of a judge of permission to appeal from his decision on an appeal under section 69 of the Arbitration Act 1996, the Court of Appeal has jurisdiction to refuse such application as totally without merit."

8. This is our determination of that question.
9. CPR 52.3 provides as follows:-

"(1) An appellant or respondent requires permission to appeal –

(a) where the appeal is from a decision of a judge in … the High Court …

…

(4) Subject to paragraph (4A) and except where a rule or practice direction provides otherwise, 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.

(4A) (a) Where a judge of the Court of Appeal … refuses permission to appeal without a hearing and considers that the application is totally without merit, the judge may make an order that the person seeking permission may not request the decision to be reconsidered at a hearing."

10. MWP's case is that its application to this court seeking to have Burton J.'s order refusing permission to appeal set aside is not an "appeal" within the meaning of CPR 52.3 at all, and that therefore no permission is required to make such an application, which can be made as of right. Therefore, the court has no jurisdiction to deal with the matter on paper at all, let alone treat the application as if it were an application for permission to appeal, refuse permission and declare the application to be totally without merit and thus not fit for an oral hearing.

Submissions

11. Mr. Nicholas Lavender Q.C. submitted on behalf of the applicant:-

(i) that CPR 52.3 was made pursuant to section 54(1)(c) of the Access to Justice Act 1999 ("the 1999 Act"), which enacted that rules of court might provide that any right of appeal to the Court of Appeal could be exercised only with permission;

(ii) that section 54(5) extended the meaning of the expression "right of appeal" to an application to have a case stated for the opinion of the High Court, and section 54(6) to an application for a new trial or to set aside a verdict in any High Court cause or matter tried by jury;

(iii) that CPR 52.1(3)(a) adopts the extension of a right of appeal to a case stated set out in section 54(5) of the 1999 Act, but does not adopt the extension of a right of appeal to the instances mentioned in section 54(6) of the 1999 Act; and

(iv) that it is therefore to be inferred, not merely that rights to make applications to the Court of Appeal other than those mentioned in the 1999 Act do not constitute "rights of appeal", but that all applications to the Court of Appeal, other than applications to have a case stated, fall outside the scope of CPR 52.3, with the result that permission to appeal is not required.

12. Mr. Philip Shepherd Q.C. for the respondent submitted:-

(i) that MWP was effectively exercising a right of appeal;

(ii) that CPR 52.3 therefore applied; and

(iii) that there was jurisdiction to deal with the matter on the papers and, if the application was totally without merit, to refuse MWP an oral hearing of the application.

Disposal

13. The initial difficulty with Mr. Lavender's submission is to ascertain the source of the Court of Appeal's jurisdiction to hear MWP's application, if (as he says) it is not an appeal. The Court of Appeal is a creature of statute and its jurisdiction is derived from sections 15 – 18 of the Senior Courts Act 1981, of which sections 16 – 18 are material for present purposes. The relevant parts of those sections provide:-

"16. Appeals from High Court

(1) Subject as otherwise provided by this or any other Act … the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court.

17. Application for new trial

(1) Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.

…

18. Restrictions of appeal to Court of Appeal

(1) No appeal shall lie to the Court of Appeal –

. . .

(g) except as provided by Part 1 of the Arbitration Act 1996, from any decision of the High Court under that Part."

14. In CGU International this court held (paras 73-76) that section 3 of the Human Rights Act 1998 enables the court to limit the restriction on giving leave to appeal imposed by section 69(8) of the Arbitration Act 1996, thereby enabling it to exercise its jurisdiction under section 16 of the 1981 Act to hear an appeal against the order below, a jurisdiction which is not removed by section 18(1)(g). That analysis proceeds on the assumption that an application to set aside the order below in the exercise of the so-called "residual jurisdiction" is an "appeal" for the purposes of section 16(1), which the court has jurisdiction to hear and determine. If that is right (as we believe it to be), MWP's application is an appeal to which CPR 52.3 applies.
15. Mr. Lavender submitted that an application invoking the residual jurisdiction is more akin to an application made pursuant to section 17, because it is an application "to set aside a judgment", but quite apart from the fact that it is difficult to describe one paragraph of an order as "a judgment", that does not help him, because the jurisdiction to hear and determine such an application can only be exercised by way of appeal, to which CPR 52.3 will apply.
16. Mr. Lavender's final resting place on jurisdiction was that an application to invoke the residual jurisdiction falls completely outside these sections because it does not involve an appeal, but if that is right, this court has no jurisdiction to hear the application at all, because it is certainly not an application for a new trial. So that does not help Mr Lavender either.
17. Mr. Lavender attempted to argue that we were not bound by the decision in CGU International to hold that the source of the residual jurisdiction is to be found in section 16(1) of the 1981 Act, but since Mr. Butcher Q.C. in that case had expressly argued that there was no permissible jurisdictional basis to intervene and this court held that there was and that it was to be found in section 16(1), we consider we are indeed bound to follow that decision.
18. The fact therefore remains that the residual jurisdiction derives from section 16(1) of the 1981 Act and that the "right of appeal" referred to in section 54(1) of the 1999 Act is a right to invoke the jurisdiction conferred on this court by section 16(1) of the 1981 Act. The fact that sections 54(5) and 54(6) add two further categories of rights of appeal does not have any relevance when the residual jurisdiction relied on is already included in the right of appeal referred to in section 54(1). Mr. Lavender's ingenious submissions therefore fall away and MWP's application falls within CPR 52.3. It requires permission and that permission may, in an appropriate case, be refused on the grounds that the application is totally without merit. To put the matter more broadly, the only avenue to this court from the High Court is by way of an appeal to which CPR 52.3 applies.
19. We conclude, therefore, that the order of Longmore L.J. was within this court's jurisdiction and that the question which we have sat to consider must be answered 'Yes'.
20. For the avoidance of doubt, we declare that this judgment may be cited and reported in order that those taking an interest in arbitrations (and commercial cases generally) can know the true position.