Tanfern Ltd v Cameron-Macdonald and another

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE BROOKE, LORD JUSTICE PETER GIBSON, THE MASTER OF THE ROLLS
Judgment Date12 May 2000
Neutral Citation[2000] EWCA Civ J0512-18
Docket NumberCase No: FC2 2000/6135/B2

[2000] EWCA Civ J0512-18

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM PORTSMOUTH COUNTY COURT

(District Judge Ackroyd)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Master Of The Rolls

Lord Justice Peter Gibson

Lord Justice Brooke

Case No: FC2 2000/6135/B2

Tanfern Limited
Appellant/Claimant
and
Gregor Cameron-macdonald
Mona Berit Cameron-macdonald
Respondents/Defendants

Paul Emmerson (instructed by Marks Miller & Co for the Appellant)

The Respondents were not present or represented.

LORD JUSTICE BROOKE
1

This is an application made by the claimants in curious circumstances. They brought an action against the defendants for unpaid rent in relation to a lease of cafe-restaurant premises in Petersfield which the defendants vacated in August 1996. The arrears of rent amounted to just over £20,000, together with interest of about £7,000 up to 23rd February 2000, the date of the hearing in the court below. The claim was originally started in the High Court before being transferred to the county court. It was allocated to the multi-track, and with the consent of the parties District Judge Ackroyd heard the claim and entered judgment for the defendants. His jurisdiction to try a multi-track claim was founded in paragraph 11.1(d) of Practice Direction 2B, which supplements CPR Part 2. The district judge then gave permission to appeal.

2

The claimants sought to lodge their appeal at the county court as an appeal to the circuit judge. Their solicitors were advised, however, that the designated civil judge had directed the court office at the Portsmouth County Court that since this was a multi-track case heard by the district judge by consent, the appeal must go to the Court of Appeal. They did not believe that this was correct, and when they sought advice from a lawyer in the Civil Appeals Office, she advised them to go back to the county court. They were also told that if they had tried to lodge an appeal at the Court of Appeal under these circumstances the papers would have been returned to them since the Court of Appeal did not have jurisdiction to hear the appeal.

3

When they raised the matter of the appeal with the county court again, the were told that the designated civil judge had commented on their further letter in these terms:

"I still think that the appeal in this case goes direct to the Court of Appeal. CCR 37 R6 deals with appeals from District Judges exercising their usual jurisdiction, and as appears from the notes extends and also covers cases within the concurrent trial jurisdiction of the County Court Judge and the District Judge. But this case does not come into either category: it was a multi-track case being heard by a District Judge with the agreement of the parties, ie he was in effect sitting as in the capacity of a Circuit Judge, and consequently an appeal from his decision cannot be entertained by another Circuit Judge. That is a view shared by other Designated Judges."

4

They therefore returned to the Court of Appeal in search of a home for their appeal. On this occasion the papers were referred to me, and I directed that the matter should be listed before a two-judge court as soon as possible so that there could be an authoritative judicial ruling as to which level of court the appeal should lie. I also requested the preparation of a bench memorandum by a lawyer in the Civil Appeals Office (to be shown to the claimants' solicitors) which would set out dispassionately the arguments for and against this court having jurisdiction to hear the appeal, since the matter, although important, did not appear to warrant the instruction of an amicus. We are very grateful for the assistance we received, both from this source, and from Mr Emmerson, who appeared for the claimants before us. Although we understand that the county court is now willing to list the matter as a substantive appeal, it appeared to us to be very desirable to give an authoritative ruling on the point.

5

This was a county court matter, and at the relevant time appeals from orders of district judges in the county court were governed by CCR Order 37 Rule 6 (as scheduled to the CPR). This provides that:

"(1) Any person affected by a judgment or final order of the District Judge may, except where he has consented to the terms of the order, appeal from the judgment or order to the Judge."

6

This rule was made under powers created by Section 77(1A) of the County Courts Act 1984 which was inserted by Schedule 17 to the Courts and Legal Services Act 1990. This sub-section enables rules of court to make provision:

"for any appeal from the exercise by a district judge, assistant district judge or deputy district judge of any power given to him by virtue of any enactment to be to a judge of a county court."

7

The situation was different so far as high court proceedings were concerned. RSC Order 58 Rule 2 (as scheduled to the CPR) provided for an appeal from certain decisions of masters or district judges to go to the Court of Appeal. These included a judgment, order or decision of a master given or made at trial on the hearing or determination of any cause, matter, question or issue tried before him (RSC O 58 r 2(1)(a)). RSC Order 58 Rule 3 was concerned with appeals from District Judges in the High Court:

(1) An appeal shall lie from any judgment, order or decision of a District Judge in any proceeding in any Division in the same circumstances and … subject to the same conditions as if the judgment, order or decision were given or made by a Master or Registrar in those proceedings in that Division, and the provisions of these rules with respect to appeals shall apply accordingly."

8

When the Civil Procedure Rules were introduced on 26th April 1999, the Practice Direction which supplements RSC Order 58 Rule 2 provides in paragraph 1.1 that the provision was "not intended to alter the route of appeal from a decision of a Master or District Judge". Paragraph 1.2 states that where, before 26th April 1999, an appeal would have lain from a decision of a Master or District Judge to a Judge under RSC Order 58 Rule 1, "it shall continue to do so under the Civil Procedure Rules". Paragraph 1.3 of the Practice Direction states that:

" RSC Order 58 r 2(1)(a) provides that an appeal lies to the Court of Appeal from a decision of a Master or District Judge made 'at trial … on the hearing or determination of any cause, matter, question or issue tried before him'. This provision only applies where the parties have given their consent for the Master of District Judge to try a case which has been allocated to the multi-track under Part 26 (see para 4.1 of the Practice Direction on Allocation of Cases to Level of Judiciary —Part 2B)."

9

If this action had been proceeding in a district registry of the high court, the designated civil judge at Portsmouth would have been correct to decline jurisdiction in these circumstances. These, however, were county court proceedings, and there is nothing in the county court rules to indicate a direct route of appeal from a district judge of the county court to the Court of Appeal in circumstances like these.

10

So far as county court procedure is concerned, the judgment of this court in Director-General of Fair Trading v Stuart [1991] 1 All ER 129 elucidates the position helpfully. In that case the registrar of the Salford County Court (who would now be described as a district judge) granted an injunction, to which the appellant raised no objection, restraining him from conducting any unfair trade practices. The appellant appealed to the Court of Appeal, relying on Section 42(2) of the Fair Trading Act 1973 which appeared to prescribe that route of appeal.

11

In his judgment, with which the two other members of the court agreed, Lord Donaldson of Lymington MR mentioned this submission, and said at p 130d-e:

"We have, of course, given due weight to that submission, but the error lies in failing to appreciate that an appeal to the judge of the county court is in the nature of an internal appeal, and it is only if the litigant wishes to appeal outside the county court, an appeal from the county court to another court, that s 42 comes into play and specifies that the court shall be the Court of Appeal rather than a Divisional Court or the Restrictive Trade Practices Court or any other court."

12

He added at p 130f-g:

"So, in summary, the appeal does lie to the judge under Ord 37 because that internal form of appeal within the county court is not the type of appeal to which s 42(2) of the Fair Trading Act 1973 applies. It applies to appeals from the county court to another court and such an appeal can only be brought after the internal remedies have been exhausted by an appeal from the registrar to the judge. I would so declare."

13

In my judgment, this accurately reflects the status of the appellate regime within the county courts up to 2nd May 2000, and there is nothing in any rule or practice direction to suggest that the regime would be any different because on a particular occasion a district judge was exercising the jurisdiction of a circuit judge (see Practice Direction 2B para 11.1(d)). This may seem to be an anomalous result, because if the district judge had been exercising similar jurisdiction as a district judge of the high court the appeal would indeed have lain to this court. It was always likely, however, that there would be some anomalies during the interim period of 12 months between the introduction of a modern, integrated set of civil procedure rules for first instance hearings and the introduction of a similar set of procedures in respect of appeals. This...

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