A JUDGE CANNOT GIVE PERMISSION TO APPEAL AFTER THE HEARING: MONROE -v- HOPKINS – SECOND ROUND
The case of Monroe -v- Hopkins  EWHC 645 (QB) is the second judgment on the case. The judgment today related solely to the defendant’s application for permission to appeal. The judge ruled that he did not have jurisdiction to hear an application made two weeks after judgment had been handed down.
- The rules require that a party seeking permission to appeal make the application to the lower court at the hearing at which the decision to be appealed was made.
- If an application is not made at that hearing then the judge does not have jurisdiction to give permission to appeal at a later date.
- It may be possible, and sometimes desirable, to adjourn a hearing to allow a party to consider making an application for permission to appeal. However a hearing cannot be “re-opened” retrospectively.
The claimant had been successful in an action for defamation. The judgment was handed down and orders given for payment on accounts of costs. No application was made for permission to appeal. Some two weeks later the defendant wrote to the judge seeking permission to appeal.
CPR 52 AND PERMISSION TO APPEAL
“(2) An application for permission to appeal may be made—
(a) to the lower court at the hearing at which the decision to be appealed was made; or
(b) to the appeal court in an appeal notice.
(3) Where the lower court refuses an application for permission to appeal—
(a) a further application for permission may be made to the appeal court; …”
PD 52A 4.1.
“Where to apply for permission
4.1 An application for permission to appeal may be made–
(a) to the lower court at the hearing at which the decision to be appealed against is given (in which case the lower court may adjourn the hearing to give a party an opportunity to apply for permission to appeal); or
(b) where the lower court refuses permission to appeal or where no application is made to the lower court, to the appeal court in accordance with rule 52.12.
THE JUDGE’S CONSIDERATION OF THE RULES
The editorial notes in Civil Procedure have something to say about the words “at the hearing at which the decision to be appealed is made”. As was pointed out in Kingsley Napley’s letter of 23 March, one of the things the notes say is that those words “in effect mean that the application should be made to the judge whose decision is being challenged”. But in the 2017 edition those words are part of a longer passage at 52.3.6, and they appear in this context:
“Where an application for permission is made to the lower court it is to be made “at the hearing at which the decision to be appealed was made” which in effect means that the application should be made to the judge whose decision is being challenged (and not to some other judge of the lower court). The object is to discourage would-be appellants from delaying an application for permission to the lower court and to avoid the inconveniences that might arise where the judge of that court is peripatetic or part-time. As noted above, para.4.1(a) of PD 52A states that the lower court may adjourn the hearing, that is to say, “the hearing at which the decision to be appealed was made”, to give a party an opportunity to apply to it for permission to appeal. There is nothing in that provision to encourage the view that the court may order such adjournment retrospectively, a point that was arguable under relevant supplementing practice directions as they stood before 1 October 2012 (see Balmoral Group Ltd v Borealis (UK) Ltd  EWHC 2228 (Comm), 23 August 2006, unrep., and Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd  EWHC 236 (TCC), 8 February 2007, unrep.). If a judge hands down a reserved judgment in the absence of the parties and is aware that one party wishes to appeal, the judge should formally adjourn the hearing to enable that party to apply for permission to appeal (Jackson v Marina Homes Ltd  EWCA Civ 1404, 13 November 2007, unrep., CA, at ).”
Normally, when judgment is handed down, an application for permission to appeal is made or not made, and that is the end of it. But it is the fairly common practice of the court, and my common practice, to agree to adjourn a hearing to allow consideration of an application for permission to appeal. If judgment is handed down without attendance, it is common practice to adjourn the hearing to allow an application to be made, even if there has been no indication about the possibility of an appeal. As I have noted, however, in this case the parties attended the hand down and there was no application for permission to appeal, nor any application to adjourn in order to make such an application.
There comes a point when the lower court no longer has jurisdiction over the case. It is functus officio. In the Multiplex case Jackson J (as he then was) took the view that a judge could hear an application for permission to appeal against his own decision if the order reflecting his judgment had not been sealed: see . That decision was taken under a different version of the CPR. In any event that that line of argument is not open to Ms Hopkins, as the order in this case was sealed two days before her application to me.
Ms Monroe’s solicitors have argued that the application seeks in essence a retrospective adjournment of the hand-down hearing, and that this is not permitted. The only proper venue for the application, they submit, is the Court of Appeal. Kingsley Napley’s response is that, having considered the Multiplex case, “it does not appear to us to be proportionate to advance a positive case that the Judge has jurisdiction to determine an application for permission to appeal.” But they say that if I can see a basis on which I have jurisdiction, their client asks me to rule on whether to grant permission. I assume that I am also expected to take a proportionate approach to the issue. My conclusion is that I can see no basis on which I still have jurisdiction in the matter.
It seems to me that the fairly settled practice that I have described above reflects a proper interpretation and application of the rules. The words of the rule and PD must mean something fairly close to what they say. A reserved judgment is given, and the decision is made, when the judgment is handed down at a hearing in court. On the face of it, the application to the lower court must be made then, or at some later date to which the hearing is then adjourned for that purpose, at the request of the potential appellant or at the instigation of the court. If an application is not made at one or other of those times, it can only be made to the appeal court. This is a clear and understandable regime, which places the onus on the party who may wish to appeal to make a decision, or to ask for time to make one. The standard practice of circulating reserved judgments should make it easier for a party to decide whether to seek permission, and to identify grounds of appeal which can be argued at the hand down. It is inherently desirable to avoid afterthoughts, and to avoid the uncertainty for the opposite party that would result if these were permitted.
In Multiplex Jackson J took the view that wording of the then Practice Direction left it open to a party to request further time to make an application for permission, and the court could grant such a request, even if it came after the hearing at which the decision was made. But he held that the Court could not do this after its order had been sealed. It is not necessary to go into the question of whether the current CPR are to be interpreted in the same way. But I can see the force of what the editors say about the present wording. It is not easy to read it as leaving room for a retrospective adjournment of the kind contemplated by Jackson J.”