Smith v Cosworth Casting Processes Ltd (Practice Note)

Leave to appeal, once granted by a single Lord Justice, should be set aside only where the proposed appeal is bound to fail or there was no good reason to grant leave. A respondent bears a heavy burden in seeking that course.

The refusal of leave requires satisfaction that the applicant has no realistic prospect of success, although leave may properly be granted for public-interest reasons or to clarify the law. Reasons given when granting leave may identify only one issue and do not ordinarily limit the scope of the appeal. Applications to set aside leave are discouraged where they duplicate the appeal and cause delay or expense.

The defendant applied to set aside an order of Otton LJ granting the plaintiff leave to appeal from orders made in the Worcester County Court. The underlying claim concerned an alleged workplace accident and had been automatically struck out under Order 17 of the County Court Rules after failure to set it down for trial.

The proposed appeal raised issues concerning extension of time, whether the automatic directions had struck out the action, and reinstatement. The defendant argued that the appeal could not succeed on the extension-of-time issue and that Otton LJ had granted leave only because he wished to reconsider Ferreira v The American Embassy.

The central questions were whether the grant of leave should be set aside and what principles govern leave applications and applications to revoke leave.

1. Application dismissed. The grant of leave was not set aside. The appeal was to be listed at the first available opportunity, with costs payable by the defendant.

2. Swinton Thomas LJ held that a single Lord Justice’s grant of leave is ordinarily conclusive. It may be set aside only where the respondent establishes that the appeal could not succeed. The proposed appeal was not inevitably bound to fail because the judge might have had material before him capable of supporting an extension of time, including the explanation recorded in the notice of appeal concerning the adjournment of an earlier reinstatement application.

3. The absence of evidence before the judge did not necessarily resolve the issue. The relevant question was whether the judge had applied the correct principles in exercising the discretion. Savill v Southend Health Authority established the need for material on which a discretion can be exercised, but the judgment noted the difficulty of reconciling that approach with the competing principles in Costellow v Somerset County Council and with later guidance on procedural default.

4. The Master of the Rolls gave general guidance. Leave should be refused only where the applicant has no realistic prospect of success, a formulation intended to exclude fanciful or unrealistic arguments. Leave may nevertheless be granted where the court considers that an issue should be examined in the public interest or that the law requires clarification.

5. The fact that reasons for granting leave mention only one aspect of a proposed appeal does not ordinarily mean that other arguable issues were overlooked or excluded. A respondent seeking to set aside leave bears a heavy burden and must show not merely that the appeal lacks a realistic prospect of success, but that there was no good reason for granting leave. The court will be unsympathetic to an application which substantially duplicates the expense and delay of the appeal itself.

• Court of Appeal: dismissed the defendant’s application to set aside Otton LJ’s grant of leave to appeal. The proposed appeal was directed to orders made in the Worcester County Court, including refusal of leave to appeal out of time, automatic striking out, and refusal to reinstate the action.
• Worcester County Court: Judge Morris refused leave to appeal out of time and dismissed the appeal against refusal to reinstate the action. The underlying action had been struck out under Order 17 of the County Court Rules.