THE PROFOUND DIFFICULTIES IN REHEARING AN APPLICATION WHERE PERMISSION TO APPEAL WAS REFUSED: AN “EXCEPTIONAL JURISDICTION”: NUMEROUS BITES OF THE CHERRY NOT EASILY ALLOWED

In Dal v Bicknell & Anor [2022] EWHC 120 (Ch) Mr Justice Edwin Johnson considered the circumstances in which a party, refused permission to appeal, could seek to re-open the decision to refuse permission.  The cases in which that can happen are very rare and the current case did not fall anywhere near the relevant test.

“The jurisdiction under CPR 52.30 is an exceptional jurisdiction, which will only be engaged where some obvious and egregious error has occurred in the underlying proceedings, and that error has corrupted the very process itself. The hurdle to be surmounted is a high one. The jurisdiction can only properly be invoked where it is demonstrated that the integrity of the earlier proceedings has been critically undermined”

THE CASE

The (potential) appellant applied for permission to appeal and interlocutory order made by a Deputy Master. That application was refused after a hearing.  Subsequently the appellant applied for an order setting aside the order refusing permission to appeal and to re-open the permission application”.

THE JUDGMENT ON THIS APPLICATION

The judge refused the application.

1. 1. Ceredigion was a case where permission to make the application to reopen under CPR 52.30 was in fact granted, by Andrews LJ, so that the application was heard as a substantive application, with the respondents to the application also represented.

1. 1. This is not the position in the present case. The Appellant does not have permission to make the application under CPR 52.30, and seeks the grant of that permission.

1. 1. CPR 52.30 does not give any express guidance on how to approach the permission application, and the matter did not arise in Ceredigion. CPR 52.30 does provide, in sub-paragraph (5), that there is no right to an oral hearing of the permission application, unless, “exceptionally”, the judge so directs. Sub-paragraph (6) then provides, if permission is granted, for the other party to the original appeal or application for permission to appeal to be served with the application to reopen, and to make representations on the application to reopen Sub-paragraph (7) provides that there is no right of appeal or review from the decision of the judge on the application for permission, which is final.

1. 1. Paragraph 7 of Practice Direction 52A sets out the procedure for making applications to reopen appeals. Paragraph 7.2 provides that the application for permission to make the application to reopen must be made by application notice, supported by written evidence verified by a statement of truth, and that the application for permission should not be served on any other party unless the court so directs. Paragraph 7.4 provides that the application for permission will be considered on paper by a single judge. Paragraph 7 thus confirms that the application for permission should be dealt with on paper, and without (at the permission stage) the involvement of the respondent party. Paragraph 7 does not however set out any criteria for the grant or refusal of permission to make the application to reopen.

1. 1. One might think that the correct approach to an application for permission to make an application to reopen, pursuant to CPR 52.30, should reflect the test for the grant of permission to make a first appeal; that is to say one considers whether the application to reopen has a real prospect of success or whether there is some other compelling reason for the application to be heard; in each case bearing in mind what will have to be demonstrated if the substantive application to reopen is to succeed. If, at the permission stage, there is enough in the application to reopen for permission to be granted, one then proceeds to direct service of the application on the respondent, and to give the respondent the opportunity to make representations.

1. 1. In the present case however I am considering the application for permission on paper, and without the benefit of submissions specifically directed to the nature of the permission requirement in CPR 52.30. In these circumstances, rather than attempting a definitive statement of the correct approach to a permission application under CPR 52.30, it seems to me that the right course to take is to consider the merits of the substantive application to reopen, and to see where that consideration leaves the application for permission.

1. 1. In terms of the substantive application to reopen my refusal of the Permission Application, the Appellant must satisfy the criteria in CPR 52.30(1). This requires the Appellant to demonstrate (i) that it is necessary to reopen my decision in order to avoid real injustice, (ii) that the circumstances in the present case are exceptional and make it appropriate to reopen the Permission Application, (iii) that there is no alternative effective remedy.

1. 1. The difficulty which would confront the Appellant on the substantive application is a simple one. At this point I refer to the Permission Judgment. There were six grounds of appeal. In the judgment which I delivered at the December Hearing I went through each of those six grounds of appeal and explained why, in my judgment, each ground of appeal had no real prospect of success. I also considered whether there was any other compelling reason for the appeal to be heard, and concluded that there was not.

1. 1. In his written submissions filed in support of the Application, Mr. Adams sets out his arguments as to why the refusal of the Permission Application should be reopened. Those arguments are however arguments which, as I read them, principally seek to demonstrate (i) that the Deputy Master was wrong in the decisions which he made at the April Hearing, and (ii) that I was wrong in my decision to refuse the Permission Application.

1. 1. As the Chancellor has stated very clearly, in Ceredigion, it is not enough to argue that my decision was wrong. Much more than this is required to satisfy the criteria in CPR 52.30(1).

1. 1. The Appellant’s difficulties are illustrated by paragraph 16 of Mr. Adams’ submissions, which asserts as follows:

“16. If, which is not admitted, the guidance given by the Court of Appeal in relation to CPR 52.30 is applicable to this case then if Edwin Johnson J has on the face of his reasons made an error of law, which vitiates his decision – see Regina (Goring-on-Thames Parish Council) v South Oxfordshire District Council; Practice Note [2018] 1 WLR 5161, in particular at [29] – or has failed to grapple with an issue in the case – see Municipio de Mariana v BHP Group plc [2021] EWCA Civ 1156 at [64], then the appeal should equally be re-opened in accordance with the court’s practice (in so far as the court’s substantive obligations to hear an appeal leave any room for such practice). In a procedural context, where there has been no substantive determination of the appeal and the focus of the court remains to do justice rather than avoid an injustice, exceptional circumstances means no more than “outside the ordinary run of cases” and where it is just in all the circumstances to do so – see e.g. Dymocks Franchise Systems (NSW) Pty v Todd [2004] 1 WLR 2807 at [25].”

1. 1. I do not think that this paragraph describes the jurisdiction under CPR 52.30 correctly, either by reference to the case law prior to Ceredigion, or by reference to the restatement of the relevant principles in Ceredigion. I stress the reference to restatement. It does not seem to me that Ceredigion has changed these principles. Rather they have been restated and emphasized.

1. 1. It is not sufficient simply for the Appellant to demonstrate that I made an error of law in the Permission Judgment, or that I failed to grapple with an issue in the case. The jurisdiction under CPR 52.30 is an exceptional jurisdiction, which will only be engaged where some obvious and egregious error has occurred in the underlying proceedings, and that error has corrupted the very process itself. The hurdle to be surmounted is a high one. The jurisdiction can only properly be invoked where it is demonstrated that the integrity of the earlier proceedings has been critically undermined; the paradigm cases being those where fraud or bias has occurred, or the judge has read the wrong papers. 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. 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.

1. 1. In Ceredigion the fact that the judge who considered the original application for permission to appeal might not have dealt with a particular point did not mean that the circumstances were exceptional or that the jurisdiction in CPR 52.30 could be invoked. Exceptional, in this context, means more than merely out of the ordinary run of cases. As the Chancellor explained in Ceredigion, at [50]:

“Furthermore, there is no question of the circumstances of the case being exceptional. It is clear from the authorities on 52.30 (see for example [29] in Goring on Thames cited above) that “exceptional” here means more than merely out of the ordinary run of cases, but that an obvious and egregious error has occurred in the permission to appeal process which error has vitiated or corrupted the very process itself or as it is put in other cases, the integrity of that process has been critically undermined.”

1. 1. This leads on to the question of whether the Appellant can demonstrate that an obvious and egregious error occurred in the permission to appeal process in the present case, which had the effect of critically undermining the integrity of that process. In terms of specific criticisms of the Permission Judgment Mr. Adams’ written submissions assert as follows, at paragraph 17:

“17. In particular:

17.1 in relation to the interrelationship between the CPR 8.4 and Master Teverson’s order the learned judge, with respect, despite acknowledging that the argument is “interesting”, appears to have formed his own view as to the effect of the order and the rule, without properly considering whether or not the matter is properly arguable and has therefore failed to grapple with the right issue and/or made a mistake of law – see his reasons in relation to Grounds 1, 2 and 4.

17.2 in relation to Ground 3 the learned judge was, with respect, wrong to find that the Deputy Master was not required to consider the evidence in order to determine whether or not any arguable issue arose, rather that is precisely the role of a judge at the first hearing of a Part 8 claim. He also failed to grapple, again, with the interrelationship of that issue with the effect of CPR 8.4 and 3.9, which potentially would have thrown the burden on the Defendants to persuade the court that there was an issue in relation to the existence of a partnership, which justice required be determined in all the circumstances.

17.3 in relation to Ground 5, having effectively acknowledged that the Deputy Master was wrong to determine that the issue of partnership required extensive disclosure, the learned judge went on to hold that it was impossible to say that the Deputy Master went wrong in a way that the appeal court could interfere and therefore, again, with respect, failed to grapple with the issue and/or made an error of law.

17.4 in relation to Ground 6, as the appeal is in relation to costs there was no room for the exercise of any discretion (in so far as there is any) which exists in relation to case management decisions and the learned judge again, therefore, failed to grapple with the issues of construction, practice and procedure, all of which were properly arguable.”

1. 1. It seems to me that these criticisms are essentially saying that I was wrong, in relation to each of the grounds of appeal, in refusing permission to appeal. As it happens I do not consider that I was wrong in those decisions, and Mr. Adams’ submissions do not seem to me to identify any good reason for thinking that I was wrong. That however does not seem to me to be the key point. The key point is that I cannot find, either in paragraph 17 of the submissions or anywhere else in the submissions and other materials put before me on the Application, any identification of an obvious and egregious error having occurred in my reasoning which had the effect of critically undermining the integrity of the process. The most which is said is that I failed to grapple with certain issues, but even this does not seem to me to be correct. Comparison between the grounds of appeal and the Permission Judgment demonstrates that I did deal with the arguments in support of each ground of appeal. The Appellant’s essential complaint is that I was wrong to find that those arguments had no real prospect of success.

1. 1. As the Court of Appeal explained in Mariana, at [64], grappling with an issue means that the appellate judge should address the essential points raised by the grounds of appeal and identify why, in their view, the point in question does not satisfy the test for the grant of permission to appeal. This does not connote any particular degree of detail. What is required depends on the case. In that sense, I do not think that there was any failure on my part to grapple with an issue in the present case and even if, contrary to my view, that did occur, I cannot see that it resulted in a wrong decision.

1. 1. Turning specifically to the three criteria in CPR 52.30(1), the position seems to me to be as follows.

1. 1. I can see no necessity to reopen the Permission Application in order to avoid real injustice. I do not think that any injustice, let alone a real injustice will be caused by a refusal to reopen. In the submissions Mr. Adams does attempt to argue that it would be an injustice to deprive the Appellant of her right of appeal, but the matters advanced in support of this argument do not demonstrate that the Appellant has suffered any injustice. The relevant part of the submissions simply sets out what are said to be the adverse and unfair consequences of the decision of the Deputy Master. All this seems to me however to amount to no more than a complaint that the Deputy Master did not find in favour of the Appellant. The Appellant is not able to identify any actual injustice which she has suffered, of the kind referred to in sub-paragraph (a) of CPR 52.30(1).

1. 1. I cannot see any exceptional circumstances in the present case, of the kind required to reopen the Permission Application. The reality in the present case is that the Appellant lost a case management dispute in front of the Deputy Master. Far from it being appropriate in the present case to reopen the Permission Decision, it seems to me that the appropriate and correct course is for this action to proceed, in accordance with the directions given by the Deputy Master. I can see no advantage to any party in this action in the Permission Application being brought back to life, and thereby further delaying the progress of this action.

1. 1. I do not know whether the Appellant has any alternative effective remedy in the present case. The question does not arise, given that the Appellant cannot satisfy either of the criteria in (a) and (b) of CPR 52.30(1). A relevant point in this context is that the dispute before the Deputy Master was a case management dispute. The Appellant did not, by the decisions of the Deputy Master, lose the action or a substantive issue in the action. What the Appellant lost was the ability to pursue the action on the procedural path for which she contended. The Appellant also suffered the adverse costs consequences of her defeat before the Deputy Master. These matters seem to me to bring out further the absence of anything exceptional in the present case.

1. 1. Drawing together all of the above discussion, my conclusion is that if the substantive application to reopen my refusal of the Permission Application was before me, it would fall to be refused. The Appellant simply cannot satisfy the qualifying criteria in sub-paragraphs (a) and (b) of CPR 52.30. There is no question of it being necessary to reopen my refusal of the Permission Application in order to avoid an injustice, let alone a real injustice to the Appellant. The Appellant cannot show that she has suffered any injustice in the Permission Application having been refused. Nor is there any question of the circumstances of this case being exceptional. The Appellant cannot begin to satisfy the test in CPR 52.30, as that test is explained in the relevant case law.

1. 1. This brings me back to the question of whether the Appellant should be granted permission to make the substantive application under CPR 52.30. In my view, and for the reasons which I have set out, the substantive application has no real, or indeed any prospect of success. If the substantive application was before me or any other appellate judge, it seems to me that it would inevitably fall to be refused.

1. 1. As such, it seems to me that the grant of permission for the substantive application would serve no useful purpose, and would be wrong. I therefore arrive at the conclusion that the grant of permission for the making of the substantive application under CPR 52.30 should be refused.

The application under the inherent jurisdiction of the court

1. 1. As I have already noted, the Chancellor made it clear, in his judgment in Ceredigion, that there is no independent inherent jurisdiction in the court, to reopen the determination of an application for permission to appeal, which operates independently of, or in a wider form to CPR 52.30. The Chancellor made this clear at [42]-[43], where he said this:

“42. Furthermore, contrary to Mr Adams’ submission, the jurisdiction for which he contends cannot be derived nor does it receive any support from the power given in CPR 3.1(7). In Tibbles v SIG plc [2012] EWCA Civ 518; [2012] 1 WLR 2591, this Court made clear that, whilst an exhaustive definition of the circumstances in which the discretion could be exercised was not possible, as a matter of principle it may normally only be exercised: (a) where there has been a material change of circumstances since the order was made or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated: see per Rix LJ at [39]. Mr Adams had not addressed this principle in his opening submissions and really had no answer in reply to the point made by the Court that he could not bring this case within it.

43. In other words, rule 3.1(7) will not avail the first defendant and any application to reopen the appeal can only be made under CPR 52.30. The “implicit” or “residual” jurisdiction of the Court of Appeal to correct injustice recognised by this Court in Taylor v Lawrence [2003] QB 528 was subsumed into what was rule 52.17 (now 52.30) which, as the note in the White Book at 52.30.1 states, was the procedure formulated by the Civil Procedure Rules Committee to regulate the exercise of the jurisdiction identified in Taylor v Lawrence. There is simply no other inherent jurisdiction to which the first defendant can have resort.”

1. 1. I have already set out my discussion of the Application so far as made under CPR 52.30. It must follow, from that discussion, that the application to reopen my decision on the Permission Application must fail, so far as that application is made pursuant to the inherent jurisdiction of the court. The position under CPR 52.30 cannot be outflanked by resort to the inherent jurisdiction of the court.

The application under CPR 3.1(7)

1. 1. The position is effectively the same in relation to CPR 3.1(7). As the Chancellor explained in Ceredigion, at [42] and [43] (set out above), CPR 3.1(7) cannot save an application which fails under CPR 52.30.

1. 1. It follows, from what the Chancellor has said, that the application to reopen my decision on the Permission Application, so far as that application is made under CPR 3.1(7), must also fail.

The application for a stay and for directions

1. 1. The application for a continuation of the stay ordered by Mrs Justice Falk, and the application for directions as to the further hearing of the Permission Application depend upon the outcome of the application to reopen my decision on the Permission Application. As the application to reopen has failed, the applications for a stay and for directions fall away. The decision on the Permission Application stands, and the action must now continue in accordance with the (now somewhat delayed) directions in the April Order. Accordingly, this part of the Application also fails.

Conclusion

1. 1. The outcome of the Application is as follows:

(1) So far as permission is required for the Application, I refuse permission for the Application to be made.

(2) So far as the Application does not require permission, I refuse the Application.

1. 1. I will make an order to the above effect. As I am making the order without having heard from either of the Respondents I will include a provision allowing for the Respondents or either of them (if so advised) to apply for the setting aside or variation of my order. Given the terms of my order, I assume that any such application is unlikely.

Postscript

1. 1. I circulated this judgment in draft, prior to handing down of the judgment, for corrections to be suggested. In his list of proposed corrections Mr. Adams advanced what was described as a further argument, made by reference to CPR 52.30(6), which provision I have set out earlier in this judgment. The relevant correction, in the context of which the further argument was raised, was a suggestion that I had misstated the terms of sub-paragraph (6) in paragraph 41 of this judgment. I do not think that this misstatement did occur, but whether it did or not, sub-paragraph (6) has been quoted in terms earlier in this judgment, and I do not consider that I was under any misapprehension as to what it says.

1. 1. Turning to the further argument itself, the further argument was that if an application raises issues of law which go to jurisdiction, then as the judge considering an application cannot finally decide their own jurisdiction, the proper course would be to direct an oral hearing after full argument, so that such a point can be finally determined and, if necessary, appealed. Specific examples of this, introduced by the words “for instance” in Mr. Adams’ further argument, were identified as (i) the proper approach to an application for permission under CPR 52.30 and (ii) points (which were said not to have been raised on the appeal in Ceredigion) as to the extent of the court’s inherent jurisdiction/power under CPR 3.1(7); namely whether such power was expressly additional to CPR 52.30 under CPR 3.1(1) and/or that the guidance in Tibbles v SIG plc [2012] EWCA Civ 518 (referred to by the Chancellor in Ceredigion at [42]) was expressly predicated on there being a right of appeal. Both of these specific examples were said to be raised by the Application.

1. 1. On this basis Mr. Adams submitted that “as the judge considering an application cannot finally decide his own jurisdiction, the proper course would be to direct an oral hearing after full argument, so that such a point can be finally determined and if necessary appealed”. On this basis I was invited to reconsider whether directions should be given for an oral hearing of the Application, pursuant to the Barrell jurisdiction. The point was also made that, although a judge can properly reconsider the merits of their own decision, it was not obvious how a judge could exercise a supervisory jurisdiction over their own exercise of an administrative power.

1. 1. I have considered Mr. Adams’ further argument, but I do not consider that any change to my decision is appropriate. I do not regard myself as having done anything in this judgment other than apply well-established principles of law, as explained and restated in Ceredigion, to the application for permission and, so far as the Application does not require permission, to the Application itself. I cannot see any basis on which I was required to direct an oral hearing, either in respect of any jurisdictional question or otherwise.

1. I add the point that, if the Application had simply been an application to reopen the Permission Application under CPR Rule 3.1(7), and if one ignores what the Chancellor said in Ceredigion, the application would still have fallen to be refused. Even without CPR 52.30, and even without what was said in Ceredigion, there would still be no basis for reopening the Permission Application under CPR 3.1(7), or for that matter under any inherent jurisdiction of the court. This is simply not a case where the exceptional jurisdiction to reopen a decision of the court should be exercised.