The Court of Appeal has very recently softened its approach to applications under CPR 52.30, effectively backtracking on two of its own very recent decisions. I first looked at this issue in my blog post, Appeals to the Court of Appeal after refusal of permission.
Until 3 October 2016, a party who was refused permission to appeal to the Court of Appeal on the papers was entitled to renew the application at an oral hearing before the full Court of Appeal. That right was contained in CPR 52.5 but was abolished with effect from 3 October 2016.
Once leave to appeal has been refused on the papers, then it is very difficult, but not impossible, to take the matter any further. The decision by the Court of Appeal to refuse permission to appeal, by consideration of the papers and without an oral hearing, is regarded as a final appeal.
CPR 52.30 nevertheless allows for the re-opening of final appeals, but subject to strict conditions.
In January 2021, the Court of Appeal re-visited the issue in the case of Nectrus Ltd v UCP PLC and, unusually, this was dealt with by a full oral hearing rather than on the papers, and resulted in a 22-page judgment, containing a detailed review of the case law and reaffirming the principles set out in Goring-On-Thames Parish Council, R (on the application of) v South Oxfordshire District Council and another, confirmed recently in Wingfield, R (on the application of) v Canterbury City Council and another.
In July 2021 in Município de Mariana and others v BHP Group plc and another, the Court of Appeal re-opened the refusal to grant permission to appeal by a single judge of the Court of Appeal under the provisions of CPR 52.30, and granted permission.
It did so on the ground that the single judge had failed to “grapple with” the claimants’ main challenge to the original decision, including arguments that there was no legal basis to strike out on the grounds of difficulty in managing the case, and that there was no basis for the High Court Judge to strike out claims brought as of right against defendants duly served within the jurisdiction.
The judgment contains a very useful and thorough review, at paragraphs 54 to 64, of the post-October 2016 regime under CPR 52.30, or more specifically the abolition of the right under CPR 52.5 to renew an application at an oral hearing before the full Court of Appeal.
The Court of Appeal here effectively backtracked from its position in Wingfield:
“61. Although that is a helpful summary, we would sound a note of caution about [62] in Wingfield, where the court recorded a submission that the combination of factors enumerated above “meant that in practical terms, the requirements of CPR 52.30 are ‘almost impossible’ to meet” and observed:
“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.”
62. Experience shows that practitioners, and even sometimes judges, can fasten on phrases like “almost impossible to meet” and use them as a short-cut to avoid analysis of the circumstances of the particular case. It is better not to put glosses on the language of the rule itself, though of course illustrative guidance based on the case-law such as that given in Goring and Wingfield is sometimes helpful.
63. At [66] in Wingfield, the court said this:
“In our view, an application for reconsideration of a refusal of permission to appeal involves a two-stage process. First, the court should ask whether the Lord or Lady Justice of Appeal who refused permission to appeal grappled with the issues raised by the application for permission, or whether they wholly failed so to do. Secondly, if the Lord or Lady Justice of Appeal did grapple with the issues when refusing permission to appeal, the court should ask whether, in so doing, a mistake was made that was so exceptional, such as wholly failing to understand a point that was clearly articulated, which corrupted the whole process and where, but for that error, there would probably have been a different result.”
64. The claimants submitted that a judge considering an application for PTA must “grapple with” (or “engage with”) the issues raised. This means, in our view, that the appellate judge should address the essential points raised by the grounds and identify why in their view the point in question does not satisfy the test for the grant of PTA: cf. Wasif at [20]. The concept of “grappling with” the issue does not connote any particular degree of detail: what is required depends on the case.”
Court of Appeal Template Document Wrong
PTA Template 269C1 – Oct 16 – First Appeal states, in its Notes, that
“(2) Where permission to appeal has been refused on the papers, that decision is final and cannot be further reviewed or appealed. See rule 52.5 and section 54(4) of the Access to Justice Act 1999.”
That is wrong. It is most certainly not what CPR 52.5 says. That provision reads:
“(1) Where an application for permission to appeal is made to the Court of Appeal, the Court of Appeal will determine the application on paper without an oral hearing, except as provided for under paragraph (2).
(2) The judge considering the application on paper may direct that the application be determined at an oral hearing, and must so direct if the judge is of the opinion that the application cannot be fairly determined on paper without an oral hearing.
(3) An oral hearing directed under paragraph (2) must be listed—
(a) no later than 14 days from the date of the direction under that paragraph; and
(b) before the judge who made that direction,
unless the court directs otherwise.
(4) The Court of Appeal may, in any direction under paragraph (2)—
(a) identify any issue or issues on which the party seeking permission should specifically focus its submissions at the oral hearing in order to assist the court to determine the application; and
(b) direct the respondent to serve and file written submissions and to attend the oral hearing.”
Section 54(4) of the Access to Justice Act 1999 reads:
“(4) No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).”
… and this specifically allows rules of court to say otherwise, which CPR 52.30 does.
I have recently advised on a case where the Court of Appeal appears to have accepted that its own template is wrong and has now allowed an application under CPR 52.30.
