“WHEN MUST AN UNSUCCESSFUL LITIGANT ACCEPT “NO” FOR AN ANSWER?”: COURT OF APPEAL DECISION

December 1, 2020 · by · in Access to justice, Appeals, Civil Procedure

In Wingfield, R (on the application of) v Canterbury City Council & Anor [2020] EWCA Civ 1588 the Court of Appeal considered the provisions of CPR 52.30 which provide an extremely limited chance of persuading a court to reconsider a decision to refuse permission to appeal.

 

“(1) A final determination of an appeal, including a refusal of permission to appeal) will not be reopened unless the circumstances are exceptional (Taylor v Lawrence).

(2) There must be a powerful probability that a significant injustice has already occurred, and that reconsideration is the only effective remedy (Taylor v Lawrence, In Re Uddin).

(3) The paradigm case is fraud or bias or where the judge read the wrong papers (Barclays Bank v Guy, Lawal).

(4) Matters such as the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large or the point in issue is important, are not of themselves sufficient to displace the fundamental public importance of the need for finality (Lawal).

(5) There must be a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined (Goring-on-Thames Parish Council).“

THE CASE

The Court was considering an application in a planning case where permission to appeal had been refused. The issue arose as to when the court should consider its exceptional jurisdiction to reconsider its decision.

THE ISSUE

The opening words of the judgment encapsulate the issue.  The rules give a very limited basis on which a litigant can seek to re-open an appeal or a refusal to grant permission to appeal.

    1. The question raised by these renewed applications, put at its simplest, is this: when must an unsuccessful litigant accept “No” for an answer?
    2. These are applications under CPR 52.30(1) to re-open orders refusing permission to appeal. The jurisdiction provided by CPR 52.30 allows for an appeal to the High Court or the Court of Appeal to be re-opened in very rare circumstances. Its relevant sections are as follows:
“52.30 – (1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;

(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and

(c) there is no alternative effective remedy.

(2) In paragraphs (1), (3), (4) and (6), “appeal” includes an application for permission to appeal.
…
(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.
(6) The judge must not grant permission without directing the application to be served on the other party to the original appeal and giving that party an opportunity to make representations.
(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.
(8) The procedure for making an application for permission is set out in Practice Direction 52A.”

THE PURPOSE OF CPR 52.30

The Court of Appeal then set out in some detail the purpose of CPR 52.30.

    1. We shall briefly describe again the purpose and parameters of CPR 52.30 because it seems plain from the applications before us that the jurisdiction is still not properly understood in all quarters, and that what was intended to be the clear message of Goring-on-Thames Parish Council has still not been fully heeded.
    2. Finality in litigation is a general rule of high public importance. It is particularly important in planning cases, where there is a need for speedy determination of issues relating to development, and many people other than those directly connected are affected by the outcome: see Bhamjee v Forsdick [2003] EWCA Civ 799, per Carnwath L.J., as he then was, at paragraph 36. As we have said, the Planning Court was established, as a specialist court, to achieve the necessary expedition in the determination of claims in planning and environmental cases. It would subvert the arrangements that have been put in place if unsuccessful litigants could revive the same arguments repeatedly and without limit, thereby prolonging the proceedings, and delaying a certain and final outcome. We should stress that these observations apply generally to all claims for judicial review, and not just to planning cases.
    3. The modest inroads into the principle of finality represented by CPR 52.30 have their origins in Taylor v Lawrence [2002] EWCA Civ 90, [2002] 2 All ER 353. The case concerned alleged bias on the part of the judge by reference to events which were unknown to the parties until after the dismissal of the appeal. A five-judge constitution held that this court had a residual jurisdiction to reopen an appeal “to avoid real injustice in exceptional circumstances”: paragraph 54. The exceptional nature of such a case was reiterated in paragraph 55: “it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy”.
    4. It should be noted that, earlier in his judgment, at paragraph 26, when considering counsel’s argument, Lord Woolf C.J. said that the jurisdiction to reopen an appeal was based on the two principal objectives of this court: the first “of correcting wrong decisions so as to ensure justice between the litigants involved”; the second “to ensure public confidence in the administration of justice not only by remedying wrong decisions but also by clarifying and developing the law and setting precedents”. In the course of her submissions, Ms Dehon alluded to this passage to support her submission that CPR 52.30 existed to ensure that, as she put it, “the jurisprudence was not to be led astray”, and that if a decision was going to be a precedent, and it was wrong, CPR 52.30 existed to correct it.
    5. We are in no doubt that that is not what Lord Woolf C.J. had in mind in the passage to which we have referred. He was simply identifying the objectives that justified an inherent jurisdiction to reopen in exceptional circumstances. He was not suggesting that every decision that was arguably wrong could be reopened simply because of concerns about precedent. That would cut across his subsequent emphasis on the importance of finality and the exceptional case required to reopen an appeal. Thus, in the later case of Richmond-upon-Thames London Borough Council v Secretary of State for Transport [2006] EWCA Civ 193, an appeal was not reopened, despite a subsequent decision of the ECtHR suggesting that the scope of the review by the original courts was not sufficient to comply with Article 13. At paragraph [63] Tuckey L.J. warned of the dangers of such arguments “opening the floodgates … in litigation which everyone should be entitled to assume, and all parties to it should accept, is over”. Moreover, in the present case, the point does not arise directly in any event, since Lewison L.J.’s refusal of permission to appeal is not a precedent; it is not even a decision capable of citation to another court.
    6. The Civil Procedure Rules Committee accepted Lord Woolf C.J.’s invitation to formulate a rule to encapsulate the decision in Taylor v Lawrence. That is now CPR 52.30. We have already quoted the salient provisions in paragraph 2 of this judgment. The editorial notes in the White Book 2020, at 52.30.2, make plain the limited nature of this jurisdiction:
“Rule 52.30 is drafted in highly restrictive terms. The circumstances described in r.52.30(1) are truly exceptional. Both practitioners and litigants should note the high hurdle to be surmounted and should refrain from applying to reopen the general run of appellate decisions, about which (inevitably) one or other party is likely to be aggrieved. The jurisdiction can only properly be invoked where it is demonstrated that the integrity of the earlier proceedings, whether at trial or at first appeal, has been critically undermined.”
    1. The restrictive nature of this jurisdiction has also been restated on a number of occasions. Thus in In Re Uddin (a child) [2005] EWCA Civ 52, [2005] 1 WLR 2398, the President of the Family Division said that the jurisdiction could only be invoked where “there exists a powerful probability that an erroneous result has in fact been perpetrated” and “where it is demonstrated that the integrity of the earlier litigation process … has been critically undermined”. In Barclays Bank Plc v Guy (No 2) [2010] EWCA Civ 1396, [2011] 1 WLR 681, Lord Neuberger M.R. said that reopening might be justifiable if “the judge had completely failed to understand a clearly articulated point”, although he went on to indicate that this was more likely to arise in an extreme case such as where the judge had failed to read the right papers for the case but did not realise it.
    2. In Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514, [2015] 1 P. & C.R. 12, Sir Terence Etherton, then the Chancellor of the High Court, said at paragraph 65 that the paradigm case for reopening “is where the litigation process has been corrupted, such as by fraud or bias or where the judge read the wrong papers”. He reiterated that the broad principle was that “for an appeal to be reopened, the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation”. Finally, he said:
“It also follows that the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large, or that the point in issue is very important to one or more of the parties or is of general importance is not of itself sufficient to displace the fundamental public importance of the need for finality.”
    1. These and other statements of principle were brought together in the judgment of this court in Goring-on-Thames Parish Council, to which we have already referred. Importantly, at paragraph 15, emphasis was placed on the requirement that “there must be a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined”. More recently, the scope of the jurisdiction under CPR 52.30 was summarised by Hickinbottom L.J. in Balwinder Singh v Secretary of State for the Home Department [2019] EWCA Civ 1504, at paragraph 3, in terms with which we entirely agree:
“This is an exceptional jurisdiction, to be exercised rarely: “the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation” (Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514; [2015] HLR 9 at [65] per Sir Terence Etherton VC (as he then was)). The jurisdiction will therefore not be exercised simply because the determination was wrong, but only where it can be demonstrated that the integrity of the earlier proceedings has been “critically undermined” (R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860; [2018] 1 WLR 5161 at [10]-[11]; and then only where there is “a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined” (ibid at [15]).”
    1. Accordingly, and for the avoidance of any doubt, we extract the following five principles from the authorities:
(1) A final determination of an appeal, including a refusal of permission to appeal) will not be reopened unless the circumstances are exceptional (Taylor v Lawrence).
(2) There must be a powerful probability that a significant injustice has already occurred, and that reconsideration is the only effective remedy (Taylor v Lawrence, In Re Uddin).
(3) The paradigm case is fraud or bias or where the judge read the wrong papers (Barclays Bank v Guy, Lawal).
(4) Matters such as the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large or the point in issue is important, are not of themselves sufficient to displace the fundamental public importance of the need for finality (Lawal).
(5) There must be a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined (Goring-on-Thames Parish Council).
    1. Ms Dehon recognised, in exchanges with the court, that this combination of factors meant that, in practical terms, the requirements of CPR 52.30 are “almost impossible” to meet. That may be so; but it seems to us that the difficulty of succeeding in a such an application is merely the inevitable consequence of the principles to which we have referred. Equally, however, the rule provides a valuable protection against manifest injustice. It can be seen in operation in exceptional cases such as Couwenbergh v Valkova [2004] EWCA Civ 676, where an appeal was reopened because it was shown that the original decision was obtained by deceit and perverting the course of justice[1], and Feakins v DEFRA [2006] EWCA Civ 699, where an appeal was reopened because the court had been misled at the original hearing, five years earlier, by untrue evidence.
    2. The obvious difficulty in satisfying the requirements of CPR 52.30 is also relevant to the approach the court will take on a second application to reconsider, such as this. The defendants and interested parties submitted that, in the light of CPR 52.30(7), which provides that there is “no right of appeal or review from the decision of the judge on the application for permission, which is final”, the court has no jurisdiction to entertain such an application. Alternatively, they suggested that, if the requirements of CPR 52.30 will only be satisfied if the circumstances are “egregious”, then for a second application, an applicant would have to show that the circumstances were “overwhelmingly egregious”. Ms Dehon, on the other hand, submitted that the test was no different for a second application for reconsideration and that, theoretically at least, a disappointed litigant could apply time and time again for reconsideration until he or she met with success.
    3. In our view, much of this debate was unrealistic. We think that, whilst there is jurisdiction for this court to entertain a second application for reconsideration, any such application would almost inevitably have to be based on different grounds from those advanced for the first. If we take as a starting point Ms Dehon’s realistic concession that the requirements of CPR 52.30 are “almost impossible” to meet, then they must, in practice, be even more difficult to satisfy if a Lord or Lady Justice of Appeal has already considered the grounds and refused reconsideration. We see some support for that view in the decision of the Divisional Court in Zibala v Prosecutor General’s Office, the Republic of Latvia [2019] EWHC 816 (Admin) where Bean L.J., at paragraph [21] said:
“21. Secondly, the jurisdiction to allow a second application for permission to reopen a decision, whether in the extradition jurisdiction under Criminal Procedure Rule 50.27 or in the Civil Courts under Civil Procedure Rule 52.30, may exist in theory, but Mr Josse QC and Mr Keith could not point to any case in which it has ever been exercised. For my part, I find it difficult to imagine circumstances in which it would be appropriate for a court to allow a second application. Even first applications for permission to reopen are overwhelmingly without merit: see the notes to Civil Procedure Rule 52.30 in the Civil Court Practice, although there are some, very rare, examples of first applications succeeding.” (emphasis added)
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