Clark (Inspector of Taxes) v Perks (No 2); MacLeod (Inspector of Taxes) v Same; Guild (Inspector of Taxes) v Newrick and Another

JurisdictionEngland & Wales
JudgeLord Justice Brooke,MR JUSTICE CARNWATH,LORD JUSTICE LONGMORE,LORD JUSTICE ROBERT WALKER
Judgment Date27 July 2001
Neutral Citation[2001] EWCA Civ 1228
Docket NumberCase No: A3/2000/2124 Case No B3/2000/2780,Case No: A3/2000/2124
CourtCourt of Appeal (Civil Division)
Date27 July 2001
Between
James Edward Perks

(HM Inspector of Taxes)

Appellant/Respondent
and
David Clark
Respondent/Appellant
James Edward Perks

(HM Inspector of Taxes)

Appellant/Respondent
and
Iain Macleod
Respondent/Appellant
Alan Nicoll Guild

(HM Inspector of Taxes)

Appellant/Respondent
and
(1) David Alan Newrick
(2) James Granger
Respondents/Appellants
Between
Mcnicholas Construction Company Ltd
Applicants/Appellants
and
HM Commissioners of Customs and Excise
Respondents
Between
Royston Jenkins
Claimant/Respondent
and
BP Oil UK Limited (1)
Defendants/Appellants
and
Wincanton Transport Limited (2)

[2000] EWCA Civ J0901-3

Before:

Lord Justice Peter Gibson

Lord Justice Brooke and

Lord Justice Robert Walker

Case No: A3/2000/2124

Case No C/2000/2439

Case No B3/2000/2780

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHANCERY DIVISION (Ferris J)

ON APPEAL FROM NEATH AND PORT TALBOT COUNTY COURT

(District Judge Batcup)

ON APPEAL FROM QUEEN'S BENCH DIVISION (Dyson J)

REPRESENTATIONS

CLARK v PERKS

Arshad Ghaffer (instructed by Andrew M Jackson & Co for the Appellants)

Timothy Brennan and Alison Padfield (instructed by the Solicitor for the Inland Revenue for the Respondents)

MCNICHOLAS CONSTRUCTION CO LTD v H.M..CUSTOMS AND EXCISE

The parties were excused attendance by the Court

JENKINS v BP OIL UK LTD & ANR

Gabriel Farmer (instructed by Morgan Cole for the Appellants)

The Respondents were not present or represented

Lord Justice Brooke
1

This is the judgment of the court.

2

On 2nd May 2000 new provisions governing civil appeals were introduced in England and Wales. The experience of the lawyers and staff in the Civil Appeals Office during the first week of May revealed that there was a good deal of confusion about the effect of the new rules. A three-judge court was therefore convened on 12th May to give guidance on their effect. Although the issue before that court (of which Peter Gibson LJ and Brooke LJ were members) related to a difficulty which had arisen before the new regime came into effect, the court took the opportunity to explain a number of features of the new regime which we knew to be causing uncertainties in the minds of practitioners. Brooke LJ therefore set out this guidance under a number of different heads in paragraphs 15–50 of his judgment in Tanfern Ltd v Cameron-MacDonald (Practice Note) [2000] 1 WLR 1311; [2000] 2 All ER 801 (" Tanfern"), with which Lord Woolf MR and Peter Gibson LJ agreed.

3

In paragraph 14 of that judgment he made it clear that he was concerned only with appeals in civil proceedings in private law matters, and not with appeals in public law cases or with appeals in family proceedings. The first of these exceptions arose out of the fact that no problems had been identified at that early stage in relation to public law appeals in civil cases, and it therefore appeared to be premature in those circumstances to give any guidance in that respect. The second exception arose from the fact that the Practice Direction which supplemented CPR Part 52 stated that for the purposes of appeals to the Court of Appeal from cases in family proceedings the Practice Direction would apply with such modifications as might be required. It therefore seemed inappropriate to give dogmatic guidance in circumstances in which a new Practice Direction might render such guidance quickly incorrect or obsolete, particularly as no judge with specialist knowledge of family proceedings was sitting as a member of the court.

4

The judgment in Tanfern appears to have resolved a great many of the points of difficulty which had arisen at that early stage. Inevitably, however, a number of other difficulties and uncertainties have arisen on points which were not covered by that judgment. Sir Andrew Morritt V-C, sitting with May LJ and Forbes J in Azimi v Newham LBC (CAT 26 July 2000), has now clarified the situation in relation to appeals from decisions by judges in the county court on appeals from decisions of a local housing authority brought under Section 204 of the Housing Act 1996. Six further applications, each raising a different issue under the new procedural scheme, were listed for hearing before this division of the court on 31st August 2000. We decided to hear three of these applications in two-judge divisions of the court, with a different constitution for the third application, and to hear the other three applications, which appeared to raise issues of general importance, in a three-judge division of the court. Brooke LJ was a member of the court on each occasion. In the event, ex tempore judgments were delivered in two of these cases on 31st August ( Scott v Shipp and Riniker v University College London) and Peter Gibson and Brooke LJJ will give judgment in the third case ( Plender v Hyams) immediately after this judgment has been delivered.

5

This judgment, therefore, relates directly to the three applications which we heard as a three-judge division of the court. As a convenience to practitioners we are also including references to the effect of our decisions on the three two-judge applications, as well as the effect of the decision of the Vice-Chancellor in Azimi, so that the effect of all these rulings can be seen in a single judgment, which we hope may be reported quite soon. Although the scope of this judgment has been necessarily expanded to include issues which have arisen in connection with public law appeals, we believe it will be helpful if we deal with each issue against the background of the relevant passage in the Tanfern judgment. We will not be repeating, except so far as is necessary, what has already been said there. In this respect we are following the practice adopted by another division of this court in relation to cases under the former CCR Order 17 Rule 11 in Greig Middleton v Denderowicz [1998] 1 WLR 1164; [1997] 4 All ER 181.

6

Under the two relevant passages in the Tanfern judgment we will set out the principles to be followed, and we will then apply them to the three applications we have to decide before showing how they were (or will be) applied in two of the other cases (including Azimi) to which we have referred. There is also a new point on Section 54(4) of the Access to Justice Act 1999 which arose in Riniker v University College London (CAT 31st August 2000, Brooke and Robert Walker LJJ) and in Plender v Hyams which requires separate mention.

Appeals to the next level in the judicial hierarchy —the exceptions: Tanfern paras 16–19

7

The Court of Appeal, which is a creature of statute, does not possess any jurisdiction to hear an appeal from a final decision of a district judge which has not been allocated by a court to the multi-track under CPR 12.7, 14. 8 or 26.5. This is the case even if the district judge feels that he would have allocated the case to the multi-track if he had thought that there was any need for him to do so.

8

In the passage of this judgment which is concerned with the application in Jenkins v BP Oil UK Ltd we have suggested that in the light of our decisions in that case and the recent decision of another division of this court in Sandry v Jones (CAT 6th July 2000) the appropriate authorities should reconsider the terms of the Practice Direction supplementing CPR Part 26, so that procedural judges giving case-management directions in substantial cases involving the assessment of damages can be provided with appropriate guidance about the mode of "trial" of the assessment, the level of judge who should conduct the "trial", and the relevance of allocating a non-allocated action to a track following a default judgment under Part 12 or a judgment on an admission under Part 14.

9

We have also drawn attention to the exceptional power created by CPR 52.14 for a court lower than the Court of Appeal to transfer a first appeal to this court if the tests set out in that rule are satisfied. We have suggested, however, that this power should be sparingly used and that in any case of doubt the matter should be referred to the Master of the Rolls for consideration, since Section 57 of the Access to Justice Act 1999 has conferred an identical power on him.

Second Appeals: Tanfern paras 41–45

10

Section 55(1) of the Access to Justice Act 1999 provides that:

"Where an appeal is made to a county court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that:

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it."

11

The rules in Part 52 of the Civil Procedure Rules apply to appeals to the civil division of the Court of Appeal, the High Court and a county court, subject to the exceptions mentioned in CPR 52.1(2). Section I of that Part sets out general rules about appeals, and Section II contains special provisions applying to the Court of Appeal. Throughout the Part the words "appeal court" mean "the court to which an appeal is made", and the words "lower court" mean "the court, tribunal or other person or body from whose decision an appeal is brought" (see CPR 52.1(3)(b) and (c)).

12

It follows that the new procedural regime applies as much in relation to the handling of appeals to the courts from tribunals or other persons or bodies, as it does in relation to appeals from a lower court or a high court in the ordinary sense of those words. Furthermore, throughout the Part the word "appeal" included an appeal by way of...

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