R (Medical Justice) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hooper,Lord Justice Rimer |
| Judgment Date | 16 March 2011 |
| Neutral Citation | [2011] EWCA Civ 269 |
| Docket Number | Case No: C4/2010/2189 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 March 2011 |
[2011] EWCA Civ 269
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Before : the Master of the Rolls
Lord Justice Hooper
Lord Justice Rimer
The Hon Mr Justice Silber
Case No: C4/2010/2189
CO/4321/2010
Clive Lewis QC and Joanne Clement (instructed by Treasury Solicitor) for the Secretary of State
Emma Dixon (instructed by Public Law Project) for Medical Justice
Hearing date: 23rd February 2011
Lord Neuberger MR:
This case comes before us as an appeal against, or an application to vary, the terms upon which Silber J gave the Secretary of State for the Home Department permission to appeal against his decision granting Medical Justice's application for judicial review— [2010] EWHC 1925 (Admin).
Medical Justice is a small charity which facilitates the provision of independent advice and representation to those detained in immigration removal centres. It is represented in these proceedings by Public Law Project ("PLP"), a national charity which aims to improve access for the disadvantaged to public law remedies.
On 15 April 2010, His Honour Judge Thornton QC, acting as a Deputy High Court Judge, permitted Medical Justice to seek judicial review of an aspect of the Secretary of State's policy relating to the giving of notice of removal from the United Kingdom. The particular aspect at issue was the alleged absence of any or sufficient notice to certain classes of individuals, including unaccompanied children, and those at risk of suicide and self-harm. In his decision, which was made on the papers and without submissions from the Secretary of State, Judge Thornton also ordered that Medical Justice was "to be subject to a protective costs order save for costs incurred against it up to a capped limit of £5,000".
The Secretary of State applied to vary that order, and, on 20 May 2010, Cranston J varied the protective costs order ("PCO") by adding a limitation on the costs recoverable by Medical Justice, if an order for costs was made against the Secretary of State – [2010] EWHC 1425 (Admin). That limitation provided that the hourly rates for leading and junior counsel were to be pegged to Treasury counsels' hourly rates, subject to an appropriate uplift, or success fee, being also allowed. In the event, the success fee was fixed at 43% of the pegged hourly rates.
The case then proceeded to a hearing, which culminated in Silber J's judgment in favour of Medical Justice. In the normal way, he awarded Medical Justice its costs, which included its "uplifted" leading and junior counsels' fees based on hourly rates of 143% of Treasury counsel's rates.
Following this, there was a contested hearing of the Secretary of State's application for permission to appeal, where the argument concentrated, albeit not exclusively, on the terms on which such permission should be granted. Silber J granted the Secretary of State permission to appeal, but only on terms that, whatever the outcome of the appeal, (i) the order for costs which he had just made in respect of the proceedings so far remained undisturbed, and (ii) the Secretary of State would pay Medical Justice's costs of the appeal.
The Secretary of State was unhappy with the terms upon which she had been granted permission to appeal by Silber J, and she now challenges those terms. In my judgment, however, although the point was not made by either party and there are cases in which this court has proceeded on the basis of a contrary view, that is not the right approach for a prospective appellant to adopt in these circumstances.
Where a first instance judge (a "judge") grants a party permission to appeal on terms, and the party is unhappy with those terms, he has three options. The first is to abandon the prospective appeal; the second is to accept, no doubt reluctantly, the terms; the third course is to treat the conditional permission as a refusal of permission to appeal, and to make a fresh application for permission to the appellate court. What the party concerned cannot do is to treat the permission to appeal granted by the judge as tucked under his metaphorical belt, and seek to improve his position by appealing to the appellate court against some or all of the terms.
It seems to me that this conclusion follows from the statutory and regulatory provisions governing permission to appeal.
Section 54 of the Access to Justice Act 1999 is concerned with "permission to appeal". Section 54(1) provides that "[r]ules of court may provide that any right of appeal … may be exercised only with permission". Section 54(4) states that:
"No appeal may be made against a decision of the 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)."
CPR 52 is the rule concerned with appeals, and CPR 52.3 provides that, in general, permission to appeal is required in the great majority of cases, including the present. CPR 52.3 states, so far as relevant, that:
"(2) An application for permission to appeal may be made –
(a) to the lower court at the hearing at which the decision to be appealed was made; or
(b) to the appeal court in an appeal notice.
….
(3) Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court.
(4) Subject to paragraph (4A), 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."
CPR 52.9 provides as follows:
"(1) The appeal court may –
(a) strike out the whole or part of an appeal notice;
(b) set aside permission to appeal in whole or in part;
(c) impose or vary conditions upon which an appeal may be brought.
(2) The court will only exercise its powers under paragraph (1) where there is a compelling reason for doing so.
(3) Where a party was present at the hearing where permission was given he may not subsequently apply for an order that the court exercise its powers under sub-paragraphs (1)(b) or (1)(c)."
Where a party seeks permission to appeal from the judge, and is granted such permission on terms, I find it very hard to see how the terms could be appealed in the light of the substantive part of section 54(4) of the 1999 Act. There is, in such a case a single, albeit in a sense a composite, "decision" to grant permission to appeal, and any attempt to appeal that decision appears to me to be pretty clearly prohibited by the section. I have difficulty with the notion that an appeal against part of the single, or composite, decision could be entertained: either the decision is appealable or it is not, and section 54(4) says that it is not.
As for CPR 52.9(1)(c), it seems to me that it gives the appeal court the power to vary the terms on which permission has been given, and that it applies to cases where permission has been given by the judge as well as to cases where such permission has been given by the appeal court. However, CPR 52.9(3) provides that CPR 52.9(1)(c) can only be invoked by a party who was not present at the hearing where the terms were imposed. That appears to be intended to tie in with section 54(4): if a party who had attended the hearing before the judge, at which permission to appeal had been given on terms, could apply to the appeal court for variation of those terms, the rule would at least conflict with the spirit of the statutory provision, as the application would really amount to an appeal.
On the other hand, CPR 52.9 seems implicitly to assume that a party, who was invoking CPR 52.9(1)(b) or (c) and who had not been present at the hearing at which the terms were imposed by the judge, would not be appealing against the decision to impose terms: he would be seeking to advance its case for the first time. In his judgment, which I have seen in draft, Rimer LJ has raised the point that it may be that, to the extent that the CPR 52.9(3) purport to permit a party, who was not present when the judge granted permission to appeal, to invoke CPR 52.9(1)(b) and (c), it is ultra vires in the light of section 54(4).
It may be that the answer to the point is that, because the appeal court has under CPR 52.3(2)(b) an original jurisdiction in relation to permission to appeal, an application under CPR 52.9(1)(b) or (c) would not be treated as an appeal. However, I do not think that it would be appropriate to decide that point now, as it is not easy, we have not heard argument on it, and it is unnecessary to decide it in these proceedings. If this point is a good one, then, as Hooper LJ mentioned in argument, the party concerned would, at least as I see it at present, not be without any remedy: he could apply to the judge to reconsider the terms, as he will not have had the opportunity of addressing the judge on the terms.
Accordingly, where, as here, permission to appeal is given on terms by the judge, the prospective appellant cannot appeal against those terms, as he would, at least almost always, have been "present at the hearing where permission was given". The prospective appellant in such a case is put to his election: either he accepts those terms, in which case he has permission to appeal, albeit on those terms, or he treats the conditional permission as a refusal, and pursues a fresh application to appeal to the...
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