Whitby (An Infant Suing Eve Whitby Her Mother & Next Friend) v Central Manchester Healthcare NHS Trust

At the permission stage, an appeal may proceed where the proposed grounds raise an arguable challenge to a material conclusion below. The court considered it arguable that no binding contract existed, contrary to the deputy judge’s view. It was also arguable that a difference of nearly £200,000 in the claim was sufficiently substantial to justify the exercise of discretion. Criticism of the reasons given below further supported granting permission. The court did not finally determine the contractual issue or the proper exercise of discretion.

The defendant Trust applied for permission to appeal from a decision of a learned deputy judge. The claimant did not attend and was unrepresented. The proposed appeal concerned whether there had been a binding contract, contrary to the deputy judge’s conclusion, and whether a difference of nearly £200,000 in the claim was sufficiently substantial to justify the exercise of discretion. The Court of Appeal also considered whether the reasons given below for exercising discretion were open to criticism.

Sir Murray Stuart-Smith gave the first judgment, with which Lord Justice Kay agreed.

1. Permission granted. The court considered that there was an arguable case that no binding contract existed, contrary to the view taken by the learned deputy judge.
2. The difference of nearly £200,000 in the claim was arguably sufficiently substantial to justify the exercise of discretion in favour of the application.
3. There were grounds for considering that the reasons given by the deputy judge for exercising discretion as he did were open to criticism. That provided a further basis for allowing the proposed appeal to proceed.
4. The court directed that the appeal be heard by two Lords Justices, with an estimate of half a day. There was no order for costs.

The court granted permission only. It did not determine the merits of the contractual issue or the ultimate exercise of discretion.

• Court of Appeal (Civil Division): granted the Trust permission to appeal from the decision of a learned deputy judge. The citation of the decision under appeal was not stated.