Foenander v Bond Lewis & Company
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,LORD JUSTICE SEDLEY,LORD JUSTICE DYSON,Lord Justice Brooke |
| Judgment Date | 23 May 2001 |
| Neutral Citation | [2001] EWCA Civ 759 |
| Docket Number | Case No: PTA 2001/0571/B1 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2001 |
[2001] EWCA Civ 759
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Astill J
Lord Justice Brooke
Lord Justice Sedley and
Lord Justice Dyson
Case No: PTA 2001/0571/B1
Mr Foenander appeared in person
Alistair Craig (instructed by Beachcroft Wansbroughs for the Respondents)
This application by a litigant in person raises an issue of general importance in relation to the new CPR appeals regime.
In January 1995 Mr Foenander issued a writ against Messrs Bond Lewis & Co, who are a firm of solicitors, and against Mr Florence O'Donoghue of counsel, alleging professional negligence in the conduct of the matrimonial proceedings which followed the breakdown of his marriage. The action against the Second Defendant was dismissed in April 1995 on the grounds of forensic immunity. On 1st October 1999 Deputy Master Chism struck out the claim against the first defendant ("the Chism order").
Under the former appeals regime Mr Foenander could appeal to a judge against a Master's order as of right provided his notice of appeal was given and served within five days ( RSC Order 58 Rule 1). In the event he delayed for about two weeks, and on 11th November 1999 Astill J refused to make an order extending his time for appealing ("the Astill order"). Mr Foenander then had the right to seek permission to appeal to this court against the Astill order, provided that this application was made within four weeks ( RSC Order 58 Rule 4). He did not exercise that right.
On 2nd May 2000 the new CPR appeals regime was introduced. This court has explained various aspects of the new regime on a number of occasions, and in particular in my judgments in Tanfern Ltd v Cameron-Macdonald [2000] 1 WLR 1311 and Clark v Perks [2001] 1 WLR 17. The new appeals regime applies to all applications lodged at the appeal court on and after 2nd May 2000 ( Tanfern, para 47). Under the new regime there is no appeal as of right against a Master's order ( CPR 52.3(1)(a): for the definition of the word "judge" see CPR 2.3(1)).
On 14th February 2000 the first defendants sent Mr Foenander their bill relating to the costs payable to them pursuant to the Chism order and the Astill order. On 31st October 2000 they obtained a default costs certificate in the sum of £9,713.77, and on 7th December 2000 Deputy Costs Judge Thum made an order refusing to set aside this certificate ("the Thum order"). Mr Foenander's application for permission to appeal against the Thum order was dismissed on paper by Mackinnon J on 11th January 2001 and in court by Owen J on 14th February 2001. Although he has sought to challenge the Thum order by a further application to this court, this court clearly has no jurisdiction to entertain this application under the new CPR appellate regime (Access to Justice Act 1999 ("the 1999 Act") s 54(4)). On 6th March 2001 Deputy Master Joseph ruled, correctly, that there was no further right of appeal to the Court of Appeal against the Thum order because Owen J had refused permission to appeal.
Within his Notice of Appeal against the Thum order Mr Foenander also sought an extension of time to lodge an application for permission to appeal out of time against the Chism order and the Astill order. The notice stated, among other things, that someone had impersonated Deputy Master Chism on 1st October 1999. Owen J rejected this allegation after seeing the original order which had been initialled that day, and after taking judicial notice of the practice whereby a Master's signature is compared with the stock signatures held in the Central Office before the order is stamped.
Mckinnon J dismissed this application on paper on the grounds that Mr Foenander had not sent out any explanation as to why he was now so many months out of time for appealing. On 19th January 2001 Mr Foenander purported to remedy this defect by swearing a long affidavit in which he described various features of the case going back to its inception. He attributed his failure to appeal against Astill J's order to the misconduct of solicitors he instructed "to appeal this case" on 15th October, nearly a month before Astill J made his order. On 14th February 2001 Owen J dismissed the application for an extension of time on the same grounds as McKinnon J, namely that there were no proper grounds on which an extension could be granted. He went on to say that he had no power to grant permission to appeal against his order because the Practice Direction to CPR Part 52 states (at para 4.8) that there is no appeal from a decision of an appeal court, made at an oral hearing, to allow or refuse permission to appeal to that court. This rule is of course derived from section 54(4) of the 1999 Act.
Owen J's order, which was sealed on 20th February 2001, provides that:
"1. The application for permission to appeal from the Order of Deputy Costs Judge Thum dated 7th December 2000 be and hereby is refused;
2. The application for an extension of time to appeal from:
(1) the order of Deputy Master Chism dated 1st October 1999 and
(2) the order of Mr Justice Astill dated 11th November 1999 be and hereby is refused."
I am not surprised that the proceedings in the court below took a peculiar course, because as a lay litigant Mr Foenander had difficulty in identifying the appropriate procedure for the challenges he wished to make, but in fact neither McKinnon J nor Owen J had any power to extend the time for appealing against the Astill order. CPR 52.6(1) provides unequivocally that:
"An application to vary the time limit for filing an appeal notice must be made to the appeal court."
Needless to say, the attempt by Mr Foenander to obtain an extension of time for appealing against the Chism order was doomed because he had already sought and been refused this relief by Astill J.
On 28th February 2001 Mr Foenander lodged with this court a notice of appeal against the order of Owen J. He maintained on the face of the notice that he did not need permission to appeal against paragraph 2 of that order, and he set out his grounds for appealing against paragraph 1. The first of these contentions was clearly wrong (see CPR 52.3(1) which makes it obligatory to obtain permission to appeal against all decisions of a judge in the High Court, subject to exceptions which are irrelevant in...
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Matthew Taylor v Ms Sue Diamond
...is to be extended, whether it is appropriate to grant permission to appeal. 87 Guided by the decision of the Court of Appeal in Foenander v Bond Lewis & Co [2001] EWCA Civ 759 I will consider first the substantive merit of Ms Diamond's appeals before turning to the procedural question of ex......
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Thompson v The London Borough of Redbridge
...after reading Mr Thompson's skeleton, and thought that it was a second appeal. The true position, as a result of the case of Foenander v Bond Lewis & Co [2002] 1 WLR 525, is that it is not a second appeal because Hildyard J was the first judge to decide that an extension of time should be r......
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Aanjaneya Mishra (First Claimant) v Colchester Magistrates' Court Director of Public Prosecutions (Interested Party)
...notice. In regard to the question as to whether the time limit should be extended, I remind myself of what Brooke LJ had to say in Foenander v Bond Lewis & Co [2001] EWCA Civ 759 concerning the practical consequences which may flow from refusing such an application. In the event, if an exte......
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Martin Woolls v North Somerset Council
...notice. In regard to the question as to whether the time limit should be extended, I remind myself of what Brooke LJ had to say in Foenander v Bond Lewis & Co [2001] EWCA Civ 759 concerning the practical consequences which may flow from refusing such an application. In the event, if an exte......