COURT OF APPEAL REJECTS INGENIOUS ARGUMENT THAT PERMISSION GROUNDS SHOULD BE RE-OPENED – AFTER THE APPEAL

I have written more about applications for permission to appeal in the past few weeks than in the previous nine years.   The Court of Appeal judgment in  Ingenious Games LLP & Ors v Commissioners for Her Majesty’s Revenue and Customs [2022] EWCA Civ 1015 is the fourth recent case on this issue.  However this is not a case where a party attempted to hold leading counsel’s brief fee of £65,000 in terrorem over a would be appellant (only to be told they should have written a letter instead). This is a case where the appellant instructed three QCs to argue a point in relation to permission to appeal. To be fair the respondent confined themselves to two QCS and a junior – none of whom were required to speak a word.

“Where permission to appeal has been granted on some grounds but not others so that an appeal will take place in any event, an application under CPR r 52.30 on the basis that the refusal of permission on the refused grounds should be reopened must in my judgment be brought as soon as possible and (assuming of course that the relevant facts were then known to the applicants) well before the hearing of the substantive appeal so that if the CPR r 52.30 application succeeds there can be a single hearing of the appeal rather than two.”

 

THE CASE

The appellants sought permission to appeal a decision. In February 2020 they obtained permission to appeal on some grounds of their proposed appeal. The matter proceeded to a six day hearing in the Court of Appeal where the appellants were successful on some grounds and not others. Judgment was given in August 2021.

THE APPELLANTS’ SUBSEQUENT APPLICATION TO RE-OPEN THE PERMISSION TO APPEAL GROUNDS

In March 2022 the appellants made an application to re-open the grounds of appeal they had been refused permission on in February 2020.

    1. Firstly, one of the points taken by HMRC was that there was an unreasonable delay in making the present application. Arnold LJ’s decision on permission to appeal was made at the end of February 2020, the appeal was heard over six days in March 2021, and the judgment of the Court of Appeal was handed down on 4 August 2021. This application however was not brought until 11 March 2022, over seven months later.
    1. The question is whether that application should have been brought before the substantive appeal was heard, that is between February 2020 and March 2021. Mr Peacock said No; that it was a pre-condition of an application under CPR r 52.30 that the decision could be said to cause injustice; and that this could not be said until it was known whether the appeal on Grounds 1 and 3 succeeded or not, as unless and until that had happened it could not be said that any injustice had been caused.
    1. I unhesitatingly reject that submission. Where permission to appeal has been granted on some grounds but not others so that an appeal will take place in any event, an application under CPR r 52.30 on the basis that the refusal of permission on the refused grounds should be reopened must in my judgment be brought as soon as possible and (assuming of course that the relevant facts were then known to the applicants) well before the hearing of the substantive appeal so that if the CPR r 52.30 application succeeds there can be a single hearing of the appeal rather than two. This is particularly so if, as here, it is suggested that the refused grounds should have been permitted precisely because they were all bound up with the grounds on which permission to appeal was granted. Here the LLPs knew the terms of the limited permission granted by Arnold LJ in February 2020 and could at that stage have worked out the potential consequences were their appeal on Grounds 1 and 3 to succeed. It was in those circumstances wholly wrong in my judgment to keep the CPR r 52.30 application back until after they saw whether their appeal on Grounds 1 and 3 succeeded or not. I would have been prepared to refuse this application on that ground alone, although, for the reasons I have given, it does not in fact arise.
    1. I add that even if there had been justification for waiting until the outcome of the appeal was known, it is very difficult to see any justification for delaying from 4 August 2021 to 11 March 2022 before bringing the application. It is true that CPR r 52.30 does not contain any specific time limits. That is understandable, as in some cases it may take a long time for matters justifying reopening to come to the attention of the applicant. But that does not mean that where the applicant does know the grounds on which he wishes to make his application he can be as leisurely as he likes about it.
    1. The second point I would like to add is this. Mr Peacock pointed out that under the terms of Article 2 of the Appeals Order, which I read earlier, the question is whether the appeal raises an important point of principle of practice, not whether each ground does. That is true, and the same is true of the second appeals test for appeals from Court decisions under CPR r 52.7. It was suggested by Mr Peacock, somewhat faintly, that that meant that Arnold LJ was wrong to consider each of the grounds against this test.
    1. I do not accept that. The Court has express power under CPR r 52.6(2)(a) when granting permission either under this rule, which is the rule for first appeals, or under CPR r 52.7, which is the rule for second appeals, to limit the issues to be heard. It is standard practice when considering an application for permission to appeal in a first appeal to consider whether each of the grounds has a real prospect of success, even though under CPR r.52.6 the rule is phrased by reference to whether the appeal has such a prospect. Similarly, it is standard practice when considering permission to appeal for a second appeal under CPR r 52.7 or under Article 2 of the Appeals Order to consider whether the grounds put forward should all be permitted to go forward to a full appeal. I see nothing wrong in the familiar practice of permitting some grounds to go forward on the basis they do raise an important point of principle or practice but refusing permission to appeal on other grounds on the basis that they do not. Of course, if the issues are all truly bound up together the Court may well allow grounds to go further even if, had they been viewed in isolation, it would have been difficult to say that they raised any important point of principle. But the Court is certainly not in my judgment obliged to permit all arguable grounds to go forward just because one of them, and hence the appeal as a whole, raises some important point of principle and practice.
    1. Those are the reasons why I agreed that permission in this case should be refused.
    1. For the avoidance of doubt we are agreed that permission should be given (if necessary) under paragraph 6.1 of the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 for our judgments to be cited, despite the fact that this application is (arguably) an application for permission to appeal and hence within the categories referred to in paragraph 6.2.