Tabram v Christchurch Borough Council

On a second appeal, permission should be granted only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it, under rule 52.13 of the Civil Procedure Rules 1998. A party has a right to one appeal, not two. Permission may be refused where the lower appellate judge was entitled to strike out a re-pleaded claim as disclosing no viable cause of action within the limitation period, and where the proposed appeal would fail on its merits in any event. An extension of time may be granted to an unrepresented applicant without overcoming the second-appeal threshold.

The applicant claimed damages from Christchurch Borough Council, alleging that planning permission for a neighbouring ski and leisure centre had been improperly granted and that the Council had colluded with the developers over a highway visibility splay and alleged encroachment. His High Court claim was struck out, although he was given an opportunity to reformulate it. The re-pleaded claim was then struck out by District Judge Weintroub and that decision was upheld by His Honour Judge Pryor QC. The applicant sought an extension of time and permission for a second appeal, relying principally on a later requirement to remove the alleged encroachment and on allegations of fraud and improper conduct. The central issue was whether the statutory second-appeal threshold was satisfied.

1. Extension of time. The appellant’s notice was lodged 25 days late. The Court extended time, taking account of the difficulty of the matter and the applicant’s lack of legal representation.
2. Second-appeal threshold. Under rule 52.13 of the Civil Procedure Rules 1998, permission required an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear the appeal. The general appellate system gives a right of appeal, not a right to two appeals. A further appeal is therefore permitted only in limited circumstances.
3. Application of the threshold. The proposed grounds concerned the planning permission, the Council’s withdrawal of enforcement proceedings, alleged collusion, and the later demand that the fence be removed. The material events had occurred outside the limitation period. The later demand did not disclose a cause of action arising within the relevant period. His Honour Judge Pryor had carefully considered the case and was entitled to conclude that no cause of action arising after June 1992 had been pleaded, and that fraudulent concealment had not been asserted.
4. Merits and disposition. Even if permission were granted, the Court was satisfied that the appeal would fail on its merits. Permission to appeal was refused. The formal order was: application refused.

• Court of Appeal (Civil Division). On the application for an extension of time and permission for a second appeal, the Court extended time but refused permission: [2001] EWCA Civ 1131.
• Dorchester County Court. His Honour Judge Pryor QC dismissed the appeal and upheld District Judge Weintroub’s strike-out decision.
• Bournemouth County Court. District Judge Weintroub struck out the re-pleaded statement of claim as an abuse of process or otherwise likely to obstruct the just disposal of proceedings.
• Earlier proceedings. The original High Court claim was struck out. On appeal, the applicant was given an opportunity to reformulate the claim so as to disclose a non-statute-barred cause of action.