Tanfern Ltd v Cameron-MacDonald (Practice Note)

Before 2 May 2000, an appeal from a county court district judge lay to a circuit judge even where the district judge had, by consent, tried a multi-track claim within a circuit judge’s jurisdiction. Under the new civil appeals regime, an appeal is generally a review rather than a rehearing. The appeal court may intervene only where the lower court’s decision was wrong or was unjust because of a serious procedural or other irregularity.

Permission requires a realistic, rather than fanciful, prospect of success or another compelling reason. A second appeal requires an important point of principle or practice or some other compelling reason. The first appeal court’s decision is therefore ordinarily final.

Tanfern Ltd v Cameron-MacDonald concerned unpaid rent under a lease. District Judge Ackroyd tried the multi-track county court claim by consent and entered judgment for the defendants. He granted permission to appeal, but conflicting administrative advice left uncertain whether the appeal lay to a circuit judge or directly to the Court of Appeal.

The Court of Appeal convened to determine the correct appellate route. Although the county court later became willing to list the substantive appeal, the court gave an authoritative ruling. It also used the occasion to explain the civil appellate regime introduced on 2 May 2000.

1. Application determined. Brooke LJ, giving the judgment with which Peter Gibson LJ and the Master of the Rolls agreed, held that the substantive appeal had to proceed before a circuit judge in the county court. Under the pre-2 May 2000 regime, CCR Order 37 rule 6 created an internal county court appeal from a district judge to the county court judge. Nothing changed that route merely because the district judge had, by consent, exercised jurisdiction ordinarily exercised by a circuit judge. The reasoning in Director-General of Fair Trading v Stuart [1991] 1 All ER 129 accurately described that regime.

2. Destination of appeals from 2 May 2000. The general rule is that an appeal lies to the next judicial level. A final decision in a claim allocated to the multi-track under the specified allocation provisions is an exception: the appeal lies directly to the Court of Appeal. A final decision is one which would determine the entire proceedings whichever way the issue was decided. It includes a decisive ruling on a separately tried issue or part, but excludes a costs-only decision, a strike-out and summary judgment.

3. Permission and appellate approach. Permission is generally required and is granted only where the appeal has a realistic, rather than fanciful, prospect of success or there is another compelling reason. An appeal is ordinarily limited to review. The appeal court may allow it only if the lower court’s decision was wrong, or unjust because a serious procedural or other irregularity affected the proceedings. Consistently with G v G [1985] 1 WLR 647, review of a discretionary decision permits intervention only where the first-instance judge exceeded the generous ambit within which reasonable disagreement is possible.

4. Reliable reasons and appellate powers. The review jurisdiction makes an accurate record of the lower court’s judgment essential. Every appeal court has the lower court’s powers and may affirm, set aside or vary its order, remit an issue, order a new trial or hearing, and deal with costs. Small-claims appeals and appeals from authorised court officers in detailed assessment proceedings remain subject to their special regimes.

5. Second appeals and transition. A second appeal lies only where the Court of Appeal considers that it raises an important point of principle or practice or that another compelling reason exists. The first appeal is therefore ordinarily final. The new regime applies where the relevant appeal notice or application to the appeal court was filed on or after 2 May 2000. AT Poeton (Gloucester) Plating Ltd v Horton CAT 9 May 2000 was not to be followed because it overlooked the amended transitional provision. The costs of the present application were costs in the appeal.

1. Court of Appeal: held that the pre-2 May 2000 regime did not provide a direct appeal to the Court of Appeal and directed that the substantive appeal proceed before a circuit judge in the county court.
2. Portsmouth County Court: District Judge Ackroyd, trying the multi-track claim by consent, entered judgment for the defendants and granted permission to appeal.