The Iran Nabuvat

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date12 June 1990
Judgment citation (vLex)[1990] EWCA Civ J0612-5
Date12 June 1990
Docket Number90/0533

[1990] EWCA Civ J0612-5







Royal Courts of Justice


The Master of the Rolls

(Lord Donaldson)

Lord Justice Butler-sloss

Lord Justice Taylor


Credit Commercial De France
The Owners of the Ship
"Iran Nabuvat"

MR. ANGUS GLENNIE (instructed by Messrs. Lovell White Durrant) appeared for the Appellants (Defendants)

MR. N. MEESON (instructed by Messrs. Clifford Chance) appeared for the Respondents (Plaintiffs).


On 1st October 1989 Order 59 rule 14(2) was amended to read as follows:

"An application to the Court of Appeal for leave to appeal shall (a) include where necessary any application to extend time for appealing and (b) be made ex parte in writing, setting out the reasons why leave should be granted and, if the time for appealing has expired, the reasons why the application was not made within that time; and the court may grant or refuse the application or direct that the application be renewed in open court either ex parte or inter partes.

(2A) If an application under paragraph 2 is refused otherwise than after a hearing in open court, the applicant shall be entitled within 7 days after he has given notice of the refusal to renew his application, such renewal application to be made ex parte in open court.

(2B) If an application under paragraph 2 is granted otherwise than after a hearing inter partes, notice of the order is to be served on the party or parties affected by the appeal, and any such party shall be entitled, within 7 days after service of the notice, to apply to have the grant of leave reconsidered inter partes in open court".


It is the power to ask for a reconsideration inter partes in open court which has been exercised by the defendants in this case. They seek a reconsideration of leave to appeal which was granted by Lord Justice Bingham on a consideration of the written application of the plaintiffs for leave to appeal, and in the light of the documents which accompanied that written application.


In the note which appears in the 6th cumulative supplement to the Annual Practice at the end of paragraph 7 the following words appear:

"Since the single Lord Justice will (prior to granting leave to appeal) have seen and considered the draft grounds of appeal, a transcript or note of judgment appealed against and (where the application was made out of time) the reasons for the delay, it is envisaged that respondents will not apply for grant of leave to set aside unless there are cogent grounds for believing that there is some point which was not before the single Lord Justice and which renders the appeal so weak as to justify the rescinding of the grant of leave to appeal."


Before I come to the facts, let me say at once that Mr. Glennie does not accept that note as being a proper approach by this court. He submits that arguability should not be the test. The true test, as he submits, should be that leave to appeal should only be granted where there is a probability or a reasonable likelihood of the judge having gone wrong. He says, particularly in the context of discretionary decisions, that there should be a strong bias against granting leave and, if leave is granted, there should be a favourable wind given to any application to reconsider.


I am bound to say that, for my part, I do not accept that proposition at all. The grant or refusal of leave to come to the Court of Appeal is a very sensitive power which has to be exercised by the court. The bias must always be towards allowing the full court to consider the complaints of the dissatisfied litigant, and the justification for leave to appeal in its present form or (if as I hope will come to pass) in an extended form must be that it is unfair to the respondent that he should be required to defend the decision below, unfair to other litigants because the time of the Court of Appeal is being spent listening to an appeal which should not be before it and thereby causing delay to other litigants, and unfair to the appellant himself who needs to be saved from his own folly in seeking to appeal the unappealable.


Mr. Glennie's test would really involve the single Lord...

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