AN APPELLANT CANNOT RE-OPEN THE GROUNDS UPON WHICH IT HAS BEEN GIVEN PERMISSION TO APPEAL: COURT OF APPEAL DECISION

In Williams v Williams & Ors [2023] EWCA Civ 1465 the Court of Appeal considered the issue of whether an appellant could seek to re-open grounds of appeal.  The criteria was held to be very restricted and the appellant not given permission to argue the additional grounds on appeal.

 

“I, in my mind, have no doubt that Lewison LJ’s decision was the final determination of Mr Dorian Williams’ application for permission to appeal. It finally determined that permission should be granted on some grounds and not others. Once corrected under the slip rule it finally determined that he had permission to appeal on Ground 5 but no permission to appeal on any of the other grounds, and in particular not on Ground 3.”

THE CASE

The claimant/appellant is seeking to appeal an order made at trial.  He obtained permission to appeal. Permission was granted by Lewison LJ on two grounds.  After further consideration the judge clarified that permission was only given on one ground, ground 5.  After various application were made the appellant sought permission from the Court of Appeal to argue two grounds.

THE JUDGMENT

Lord Justice Nugee held that the appellant was confined to the one ground of appeal on which permission had been granted. It was not possible to re-open that earlier decision. Nor could the appellant argue additional grounds when the matter reached the Court of Appeal.

 

    1. Orders on paper are constantly being made at every level of judicial hierarchy up and down the land, and I have no doubt that accidental slips, such as a date (as indeed it appears Lewison LJ himself made in his most recent order) or a decimal point being put in the wrong place, or an order putting Claimant for Defendant and vice versa (a very common error), are frequently made, and no doubt frequently corrected. No sensible purpose would be served by construing CPR r 40.12 as not extending to such decisions.

 

    1. I therefore conclude that Lewison LJ had the power to correct his original order, and exercised that power. We cannot go behind his statement that his original order contained an accidental slip, and we have been given, in my judgement, no reason at all to revisit that aspect of his order.

 

    1. The consequence is the answer to the first question, whether Mr Dorian Williams already has permission to appeal on Ground 3, should in my judgement be answered No.

 

    1. That leads to the second question, which is whether the Court hearing the substantive appeal can grant leave for a ground of appeal which has already been refused by a single member of the Court on paper. My answer to that is also No, save in the very narrow and exceptional circumstances where the Appellant can bring himself within CPR r 52.30.

 

    1. Mr Adams accepted that there were a number of decisions to that effect before 2016. It is not necessary to refer to them all. They were in fact referred to by Newey LJ at an earlier stage of this saga, the most recent one being McHugh v McHugh [2014] EWCA Civ 1671 where Lewison LJ at [14] said:

 

“Where permission to appeal is given on limited grounds it is not open to an appellant to broaden the grounds on the hearing of the appeal itself.”

    1. Mr Adams had two submissions. One was that decisions of this Court on merely procedural matters cannot bind this Court in subsequent hearings, something for which he cited no authority that came anywhere near persuading me that it was correct, and which as a matter of principle I think must be wrong.

 

    1. The second and more far-reaching submission was that whatever the position before 2016 when a disappointed appellant who had been refused permission for certain grounds on paper could renew his application at an oral hearing, the same was not true now when the right of renewal at an oral hearing has been removed. I do not see why that affects the principle. I was wholly unpersuaded by Mr Adams, as I have already touched on, that the decision of a single Lord or Lady Justice on behalf of the Court on paper is in some way not a decision of the Court, or not a judicial decision, or not carefully considered, or was in some way an exercise of delegated or administrative or executive power. As I have already referred to, by CPR r 52.5, the decision of a single Lord or Lady Justice on paper is the determination of the Court of Appeal on the question of permission.

 

    1. As I have already said, unlike other decisions, the disappointed appellant cannot as of right require that to be reconsidered at a hearing. That is the effect of CPR r 52.24(6), which reads:

 

“(6) A party may request a decision of a single judge made without a hearing (other than a decision made on a review under paragraph (5) and a decision determining an application for permission to appeal) to be reconsidered.”

    1. That was, as is well known, a deliberate change introduced in 2016 to limit the rights of would-be appellants to renew their applications for permission. Incidentally it seems to me that there is not the slightest doubt that a decision granting permission limited to certain grounds is both a decision granting permission on those grounds, and a decision refusing permission on all other grounds, and is within the meaning of CPR r 52.24(6). A decision determining an application for permission to appeal is therefore caught by that paragraph.

 

    1. But none of that, to my mind, undermines or affects the principle of the cases which I have referred to, as exemplified by McHugh. Once the Court has made a decision refusing permission on a particular ground, that cannot be re-opened at the hearing of a substantive appeal, nor indeed can it be appealed. It is intended to be a final decision.

 

    1. That is subject to CPR r 52.30, which does allow decisions on applications for permission to appeal to be re-opened in exceptional circumstances. The rule provides:

 

Reopening of final appeals

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.

…”

    1. Mr Adams suggests that that meant that only where an application for permission to appeal was refused in its entirety so that there would be no appeal was r 52.30 applicable. That is not how I read it, nor is it to my mind the natural reading. The natural reading of (1) and (2) is that the Court of Appeal will not re-open a final determination of any application for permission to appeal unless the three conditions are satisfied.

 

    1. I, in my mind, have no doubt that Lewison LJ’s decision was the final determination of Mr Dorian Williams’ application for permission to appeal. It finally determined that permission should be granted on some grounds and not others. Once corrected under the slip rule it finally determined that he had permission to appeal on Ground 5 but no permission to appeal on any of the other grounds, and in particular not on Ground 3. In order to re-open that question, it is necessary for him to come within CPR r 52.30, because r 52.30(1), as I have read, provides that the Court of Appeal will not otherwise re-open a final determination of the application for permission to appeal.

 

    1. Mr Adams had not previously on this application suggested that Lewison LJ’s determination should be re-opened under r 52.30, but in the course of his submissions this morning he made an oral application under that rule. By r 52.30(4) he needs permission to make such an application. Normally permission is applied for on paper and determined on paper, but I will accept that he can apply for permission orally in the course of his submissions as he did. But I would not grant him such permission.

 

    1. As Mr Adams himself accepted, r 52.30 is a codification of the jurisprudence of this Court starting with Taylor v Lawrence [2002] EWCA Civ 90, in which the Court held that in exceptional circumstances the Court can re-open an appeal that has been determined. But as numerous decisions of this Court confirm, the Taylor v Lawrence jurisdiction now encapsulated in r 52.30 is confined to some serious error of process in which the prior decision can be seen to be not a proper decision at all, examples in the cases being cases of where judges have read the wrong papers or there is bias or fraud or the like, cases where no real judicial decision has been made.

 

    1. That seems to me very far removed from the facts of this case where Mr Adams sought to persuade us there was some merit in Ground 3, and therefore the Court, that is the Court hearing the appeal in two weeks’ time, ought to allow him to run Ground 3 in order to avoid injustice. That is not what CPR r 52.30 is designed for, and, in my judgement, would completely undermine the intended finality of decisions on applications for permission.

 

    1. In those circumstances my conclusion is that the pre-2016 decisions continue to apply. If permission has been granted limited to certain grounds, permission on other grounds has necessarily been refused, and the full Court hearing the appeal will not, whatever its theoretical jurisdiction, save in the exceptional circumstances covered by CPR r 52.30, re-open the question.

 

    1. I would refuse therefore the application by the Appellant to rely on Ground 3, and I would go further, and for the avoidance of doubt, direct that he may not renew this or any similar application, or indeed any of the other grounds in his Grounds of Appeal, at the hearing of the substantive appeal in two weeks’ time.

 

  1. The third question which was raised this morning was what, if our conclusions were as I have suggested they should be, should be done about the application to extend time for service of the Appellant’s skeleton. It is not however necessary to consider that in any detail because Mr Adams accepted that he would in those circumstances be content to rely on his original skeleton, as indeed the Practice Direction envisages appellants may well choose to do. That will of course, in the light of what I have said, not enable him to argue the points there deployed in relation to Ground 3 or Ground 2, or any of the other grounds other than Ground 5, when the appeal comes to be heard.