England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (QUEEN'S BENCH DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MR FANCOURT QC sitting as a High Court judge)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th November 2015

LORD JUSTICE SIMON:

1. This is a renewed application for permission to appeal an order made by Mr Fancourt QC sitting as a deputy judge of the Chancery Division on 6 November 2014. In that order he refused permission to the claimants to appeal against paragraphs 2 to 7 of an earlier order made by HHJ Gerald in the Central London County Court on 8 November 2013. He also made an order that the claimants pay the defendant's costs, summarily assessed in the sum of £5.950.
2. On 10 February 2015 Deputy Master Meacher gave directions which drew attention to the terms of section 54(4) of the Access to Justice Act 1999, which provides: "No appeal may be made against a decision of a court under this section to give or refuse permission." The effect of this provision is that the Court of Appeal has no jurisdiction to grant permission to appeal against a refusal of permission to appeal from the county court by a High Court judge or a deputy High Court judge. However, Deputy Master Meacher also drew attention to the fact that section 54(4) of the 1999 Act did not provide a jurisdictional bar to an application for permission to appeal from an order for costs made by a High Court judge in those circumstances.
3. On 15 May 2015 Jackson LJ refused permission to appeal the deputy judge's order on paper, substantially on the jurisdictional basis set out in Master Meacher's note to the appellant, namely that the Court of Appeal had no jurisdiction to grant permission in these circumstances. It follows that the only grounds for appealing would be that the costs order was outside the very wide ambit of discretion available to a judge to make orders for costs. I should note that there is in fact no appeal against the costs order other than as a consequence of the substantive application succeeding.
4. Mr Ogunbiyi, who appears for the appellant, the claimant in the action, makes a different point. His point is that Mr Fancourt failed to vary the unless order of HHJ Gerald, which he had been asked to do. The unless order had been made on 8 November 2013 and provided that the claimant was to provide answers to a request and make disclosure of specific documents. Today Mr Ogunbiyi submits that the judge should never have made an unless order, and indeed the judge might not have made the order if he had been aware that a defence had in fact been filed and that standard disclosure had been given. He further complains that some of the documents which his client is required to give do not exist and others are irrelevant, and that the ambit of disclosure is generally too wide.
5. As I say, the challenge now is on the basis that the order for specific disclosure was too wide and is an infraction of the claimant's right to a fair trial under article 6 of the European Convention of Human Rights and possibly of his rights to a private life under article 8, since the documents ordered to be disclosed are confidential.
6. A request to vary the terms of the order seems to have been made in the skeleton argument before the deputy judge although not, in the grounds of appeal; but it matters not where it was made, since it is, and was an application, which is unfounded. It is clear that the county court exercised case management powers which are there to ensure a fair trial. It did so giving the claimant every opportunity to argue that the documents should not be disclosed. As Mr Fancourt noted in paragraph 7 to 9 of his judgment, the order was substantially agreed by the claimant's counsel at the hearing and the application to vary was made way out of time.
7. The court has a jurisdiction to prevent inspection of documents which are otherwise disclosable, but the point which is now made in paragraphs 9 and 10 of the skeleton argument put forward orally are general points and unrelated to any particular documents which are the subject of HHJ Gerald's order. If the documents do not exist then an explanation can be given as why they do not exist, and that is likely to be the end of the matter subject to further investigation by the other side. If they are irrelevant or the ambit of disclosure is too wide, that is likely to be a less promising area of investigation in the light of the order which was substantially agreed, and which has not been appealed in time. In my view, this renewed application must be refused and is entirely without substance or merit.
8. For the reasons set out in the earlier part of this judgment, I have found that the renewed application for permission to appeal was without substance or merit. Mr Temmink, who appears for the respondent, draws my attention to the provisions of CPR part 52.10(5), which is in these terms:

"(5) If the appeal court –

(a) refuses an application for permission to appeal;

(b) strikes out an appellant's notice; or

(c) dismisses an appeal,

and it considers that the application, the appellant's notice or the appeal is totally without merit, the provisions of paragraph (6) must be complied with."

9. Paragraph 6 provides:

"(6) Where paragraph (5) applies–

(a) the court's order must record the fact that it considers the application, the appellant's notice or the appeal to be totally without merit; and

(b) the court must at the same time consider whether it is appropriate to make a civil restraint order."

10. It follows that it will not be in every case where the court declares that the application is totally without merit that it will necessarily make a civil restraint order. However, in the present circumstances it seems to me that this renewed application bordered on the vexatious, not least because the single Lord Justice had made it very clear that the application was entirely without substance because of the jurisdictional problems and the fact the appellant had been warned in February 2015 of the jurisdictional bar other than in relation to costs. Nevertheless, he went ahead.
11. In addition, I am told that on 22 October Warren J set aside a unilateral notice on the basis that there was no sustainable claim for it, and on 13 November 2013 Norris J decided that another application by the appellants was totally without merit. In these circumstances I make a limited civil restraint order in relation to these proceedings.

Order: Application refused