Michael Wilson & Partners Ltd v John Forster Emmott

Hearing date: 26 th November 2015

Introduction

This is the judgment of the court.

On 26 ^th June 2015 Burton J. granted an application for leave to appeal from an arbitrators' award in a dispute between the appellant, Michael Wilson & Partners Ltd ("MWP"), and the respondent, a former employee, Mr. John Emmott, but then dismissed the appeal and by paragraph (5) of his order refused permission to appeal to this court.Section 69(8) of the Arbitration Act 1996 prohibits any further appeal if the judge at first instance refuses permission: see Henry Boot Construction (UK) Ltd v Malmaison Ltd (Manchester) Ltd[2001] Q.B. 388.

This court has, however, felt constrained to recognise that it has what has been called a "residual jurisdiction" to set aside the judge's refusal to grant permission to appeal, if what appears to be a decision of the judge is no true decision at all. Potential examples are a decision made by a judge without hearing any argument or thinking that he is making it in one case but actually making it in another because he has muddled two separate cases in his mind, see North Range Shipping Ltd v Seatrans Shipping Corporation [2002] EWCA Civ 405, [2002] 1 W.L.R. 2397, 1 All E.R. (Comm) 501, CGU International Insurance Plc v Astrazeneca Insurance Co Ltd [2006] EWCA Civ 1340, [2007] 1 All E.R. (Comm) 501 and Republic ofKazakhstan v Istil Group Ltd (No. 2) [2007] EWCA Civ 471, [2008] 1 All E.R. (Comm) 88, para. 11. This jurisdiction has never been invoked successfully, but that has not inhibited many losing parties from making the effort to invoke it.

MWP sought to invoke the jurisdiction in this case by filing a notice of appeal (in the form required by PD52A paragraph 4.2) asking for paragraph (5) of the judge's order to be set aside. Section 4 of that notice acknowledged that MWP needed permission to appeal and that it had not been given; accordingly, MWP sought permission to appeal.

That application for permission to appeal came before Longmore L.J. who, on 19 ^th October 2015, refused it as being totally without merit, with the result that, pursuant to CPR 52.3(4A)(a), MWP was not entitled to ask for the decision to be reconsidered at an oral hearing. The judge gave the following reasons for his decision:-

"The applicants seek to invoke the residual jurisdiction of the court to set aside Burton J.'s refusal of permission to appeal, but there was no procedural unfairness or refusal by the judge to engage in the arguments and his reasons for refusal (namely that there was no question of law of general importance which warranted the attention of the Court of Appeal) appear from the transcript."

This evoked a response on 27 ^th October from MWP that, notwithstanding the appearance of the appellant's notice, its application was not one to which CPR 52.3 applied. The decision of Longmore L.J. was therefore a decision to which CPR 52.16(6) applied and accordingly MWP was entitled to an oral hearing at which the order of 19 ^th October would be reconsidered. CPR 52.16(6) provides as follows:-

"At the request of a party, a hearing will be held to reconsider a decision of —

(a) a single judge ….

…

made without a hearing"

The papers were again referred to Longmore L.J., who ordered that the case be listed for oral argument on the question:-

"whether, on an application to set aside the refusal of a judge of permission to appeal from his decision on an appeal under section 69 of the Arbitration Act 1996, the Court of Appeal has jurisdiction to refuse such application as totally without merit."

This is our determination of that question.

CPR 52.3 provides as follows:-

"(1) An appellant or respondent requires permission to appeal —

(a) where the appeal is from a decision of a judge in … the High Court …

…

(4) Subject to paragraph (4A) and except where a rule or practice direction provides otherwise, where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing.

(4A) (a) Where a judge of the Court of Appeal … refuses permission to appeal without a hearing and considers that the application is totally without merit, the judge may make an order that the person seeking permission may not request the decision to be reconsidered at a hearing."

MWP's case is that its application to this court seeking to have Burton J.'s order refusing permission to appeal set aside is not an "appeal" within the meaning of CPR 52.3 at all, and that therefore no permission is required to make such an application, which can be made as of right. Therefore, the court has no jurisdiction to deal with the matter on paper at all, let alone treat the application as if it were an application for permission to appeal, refuse permission and declare the application to be totally without merit and thus not fit for an oral hearing.

Submissions

Mr. Nicholas Lavender Q.C. submitted on behalf of the applicant:-

(i) that CPR 52.3 was made pursuant to section 54(1)(c) of the Access to Justice Act 1999 ("the 1999 Act"), which enacted that rules of court might provide that any right of appeal to the Court of Appeal could be exercised only with permission;

(ii) that section 54(5) extended the meaning of the expression "right of appeal" to an application to have a case stated for the opinion of the High Court, and section 54(6) to an application for a new trial or to set aside a...