Jolly v Joy
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 07 March 2002 |
| Neutral Citation | [2002] EWCA Civ 277 |
| Docket Number | Case No: B1/2001/2399 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2002 |
[2002] EWCA Civ 277
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION)
Mr Justice Neuberger
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Brooke
Lord Justice Sedley and
Lady Justice Arden
Case No: B1/2001/2399
Mr Jolly appeared in person
Ms Cheryl Jones (instructed by Seakens & Co) for the Respondents
This is the judgment of the court, to which all its members have contributed.
This application for permission to appeal was listed before us in order that the court could have the opportunity of considering the circumstances in which a respondent may be awarded costs after he has resisted successfully an application for permission to appeal. In the event the issues between the parties were for all practical purposes resolved on the day before the hearing, so that there was virtually nothing left for us to decide, so far as issues of costs were concerned. The listing of the application, however, coupled with the assistance we received from counsel, alerted us to a number of inconsistencies and uncertainties about the early stages of the new regime under CPR Part 52, so far as they relate to the position of respondents. The resolution of these problems is clearly one for those who are concerned with the preparation of the rules and practice directions under the CPR regime. We believe, however, that it would be useful for us to draw attention to them in this judgment, and to explain the reasons why respondents are now served with certain documents (such as the appeal notice and the appellant's request for the reconsideration of a decision to refuse permission) in advance of an appeal court's decision to grant permission to appeal.
The reason why the present application was of interest to the court was that in the judgment under challenge, a decision of Neuberger J dated 19th October 2001, the judge when refusing the claimant permission to appeal against a decision by a High Court master had made an order for costs in favour of the defendant who had appeared by counsel to resist the application, even though there is no procedure set out in CPR Part 52 or its Practice Direction which envisages that a respondent will appear on such an application (unless the court so directs: see the Practice Direction to CPR Part 52 (" CPR 52 PD") para 4.15).
Although Mr Jolly did not take specific issue in his Notice of Appeal with Neuberger J's order that he pay £350 plus VAT (which he has already paid), the Civil Appeal Office formally notified the parties on 30th January 2002 that the court wished both parties to appear at the hearing:
"because the Court wishes to consider the proper approach for an appeal Judge to take when a Respondent applies for costs at an oral hearing of an application for permission to appeal following the refusal of permission to appeal on paper."
The letter continued:
" Lord Justice Brooke has asked me to write to you … to inform you of the question with which the Court will be concerned since the existence of the Judge's order might affect any order for costs made at the hearing on 7th February if Mr Jolly is not successful."
These, then, were the circumstances in which the application came before the court for hearing. Mr Jolly, who has appeared before the courts many times in the last few years, appeared in person. Ms Cheryl Jones, who also appeared at the hearing before the judge, appeared for Mr and Mrs Jay. The application was formally listed as an application for permission to appeal (with appeal to follow if permission is given).
Mr Jolly is the claimant in an action for rectification of the register pursuant to section 82 of the Land Registration Act 1925 against Mr and Mrs Jay. The action concerns Mr Jolly's former matrimonial home, Inglewood, Virginia Water, Surrey ("the property") which was sold to a Mr and Mrs White and then on 4 December 1996 to Mr and Mrs Jay. These transactions have been the subject of a considerable amount of litigation as a result of Mr Jolly's desire to recover title to the property. We need not summarise all the litigation that has taken place but only some of the salient events.
The sale of the property to the Whites was made under an order of the Staines County Court made in December 1994. The details of what then happened do not matter for the purposes of this judgment. Mr Jolly took proceedings for possession under RSC Ord 113, first against persons unknown, and then against the Whites, which were struck out with costs. Mr Jolly then made an application for rectification of the register, which was refused on 14 November 1996. The Whites had been registered as proprietors with effect from 29 May 1996. Meanwhile Mr Jolly sought permission to appeal against an order dismissing a claim he had made in relation to the prior sale of the property to the Whites' predecessors. The appeal was heard by the Court of Appeal on 29 January 1997 and dismissed.
In earlier proceedings between Mr and Mrs Jolly, the court declared that the property was held on 50/50 shares by Mr and Mrs Jolly. Mr Jolly appealed against that order but his appeal was unsuccessful. Mr Jolly also pursued other claims in connection with the sale of the property. He claimed damages against his former wife's solicitors for failing to pass over the full sum of monies due to him with some success, but some of his other claims have been struck out. He has received monies from the sale of the property but claims that not all of his share has been paid to him.
On 18th June 2001 Master Bragge made an order striking out Mr Jolly's claim in the present proceedings and ordered Mr Jolly to pay Mr and Mrs Jay their costs. These costs have now been paid. Mr Jolly filed a notice of appeal at the High Court against that order, which he duly served on Mr and Mrs Jay's solicitors pursuant to CPR 52.4(3).
The matter then came before Neuberger J for permission to appeal. Neuberger J refused permission to appeal on paper on 25th September 2001, giving reasons. On 3rd October Mr Jolly made a request for this decision to be reconsidered at an oral hearing and served a copy of his request on Mr and Mrs Jay's solicitors at the same time (see CPR 52 PD para 4.14).
The High Court informed the parties on 4th October of the date fixed for the renewed application (19th October) in the following terms:—
"The attendance of the appellant is required.
The respondent(s) may attend or submit written representations before the hearing but will not usually be awarded the costs of doing so.
If a respondent submits written representations or other written material it must be served on the applicant (or his/her solicitor if any) at least two clear days before the hearing."
There is no provision in CPR Part 52 or its practice direction for a notice of this kind to be sent to respondents. CPR 52 PD para 4.15 provides:
"Notice of the hearing need not be given to the respondent unless the court so directs. The appeal court will usually so direct if the appellant is asking for a remedy against the respondent pending the appeal."
The only other provision of CPR Part 52 or its Practice Direction which touches on the possibility that the needs of the respondent are to be accommodated at a renewed hearing of an application for permission to appeal is paragraph 4.16 of the Practice Direction which provides:
"If notice of the hearing is to be given to the respondent, the appellant must supply the respondent with a copy of the bundle (see paragraph 5.16) within 7 days of being notified, or such other period as the court may direct. The costs of providing that bundle shall be borne by the appellant initially, but will form part of the costs of the permission application."
On 16th October (that is to say, on the final day allowed by the High Court's letter) Mr and Mrs Jay served a skeleton argument, settled by counsel, and they were represented by counsel at the hearing before Neuberger J three days later. The skeleton argument ended in the following terms:
"In the event that permission to appeal is not granted, [the defendants] ask the Court to award their costs of attending in that this is necessary to ensure that the Court receives an accurate picture of the matter."
Neuberger J gave a short reasoned judgment dismissing the application. During the course of it he said:
"His application is opposed by Mr and Mrs Jay, who appear through counsel, Ms Cheryl Jones, who has provided me with a skeleton argument, as has Mr Jolly. The position of a respondent to an application for permission to appeal, particularly when that application, having been dismissed, is renewed orally, is somewhat unclear and has not been worked out by the courts. Mr Jolly suggests that it was inappropriate for Mr and Mrs Jay to be represented on this application and to make submissions to me. I do not think those criticisms are justified. The position of a respondent on an application of which he or she has notice, such as the present, namely a renewed application for permission to appeal, is difficult. Some respondents let matters take their course. Some respondents think it right that they should be there with a view to knocking out the appeal if they can. The problem is particularly acute where the applicant is a litigant in person, even a litigant – or perhaps I should say especially a litigant—as persistent and as expert as Mr Jolly. In some cases the court thinks the respondent's appearance is unhelpful; in other cases it thinks...
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