Flint v Chick

Permission for a second appeal requires an important point of principle or practice or another compelling reason under Civil Procedure Rules 52.13. This is a high threshold, above the ordinary requirement of a real prospect of success. Complaints about evidence, an expert report or trial procedure do not ordinarily justify reopening a trial where the points could have been taken at first instance and the party had an opportunity to do so. A refusal of a retrial is a discretionary case-management decision. It will not be disturbed where there is no realistic prospect of showing that the discretion was wrongly exercised.

Mr Flint appealed to the Court of Appeal against His Honour Judge Langan’s dismissal of his appeal from a boundary declaration made by District Judge Hayes at Norwich County Court. The District Judge had declared that the boundary followed an existing post and wire fence rather than a ditch line proposed by Mr Flint.

Mr Flint also sought a retrial, alleging procedural disadvantage, shortcomings in the jointly instructed expert’s report and failures in the presentation of his case. The central issues were whether the boundary appeal met the second-appeal permission threshold and whether the refusal of a retrial had a reasonable prospect of being successfully challenged.

1. Second appeal. So far as the boundary determination was concerned, the application was a second appeal. Under Civil Procedure Rules 52.13, permission required an important point of principle or practice or some other compelling reason for the Court of Appeal to hear the appeal. That was a high standard, exceeding the ordinary requirement of a real prospect of success. Mr Flint’s complaints did not meet it.
2. Points not taken at trial. Alleged defects in the expert report and criticisms of the respondents’ case could all have been raised before the District Judge. An appeal could not be used to put those points afresh. Mr Flint had known that the jointly instructed expert was available for questioning. His failure to appreciate the importance of having the expert attend was a mistaken decision, but it did not establish fault by the respondents’ solicitors or the court and did not justify a further trial.
3. Retrial. The refusal of a retrial was not itself a second appeal, but permission still required a reasonable prospect of successfully challenging the exercise of the judge’s discretion. Relevant considerations included finality in litigation, the opportunity already given to question the expert, the value of the land, the costs of a retrial and the proper allocation of court time. Although the ditch had some drainage value to Mr Flint, remedial work had been undertaken at substantially less cost than the existing and prospective litigation. There was no real prospect that the refusal of a retrial would be disturbed.
4. Order. Permission was refused and the application was dismissed.

• Court of Appeal (Civil Division) On 12 December 2000, the application for permission to appeal against the order of His Honour Judge Langan, including the refusal of a retrial, was dismissed: [2000] EWCA Civ 397.
• Norwich County Court His Honour Judge Langan dismissed Mr Flint’s appeal from District Judge Hayes’s order and refused a retrial on 1 September 2000.
• Norwich County Court District Judge Hayes declared on 23 March 2000 that the boundary followed the existing post and wire fence.