Frewin v Boski & Ors

On a second appeal, permission may 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. Where two applications are listed together, the judge may decide their order in the exercise of procedural discretion. It is logical to hear an application to strike out a claim before an application to strike out the defence, since success on the former removes the need for the latter. Allegations about procedural non-compliance, litigation conduct or the merits of the underlying claim do not satisfy the second-appeal threshold without more.

The claimant sued individual members and directors of a company, alleging a conspiracy to remove him unlawfully and seeking damages, declarations and orders affecting their positions. He did not join the company as a defendant.

The District Judge heard the defendants’ application to strike out the claim before the claimant’s application to strike out the defence, struck out the claim and made the defence application unnecessary. The County Court Judge dismissed the claimant’s appeal, which challenged only the order in which the applications had been heard. A previous application for permission to appeal to the Court of Appeal had been refused in the claimant’s absence. The present hearing concerned reconsideration of that application.

1. The application for permission to appeal was refused. This was a proposed second appeal. Under rule 52.13 of the Civil Procedure Rules and section 55 of the Access to Justice Act 1999, permission required an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the appeal.

2. The District Judge was entitled, and in the circumstances obliged, to determine the order in which the two applications were heard. Hearing the defendants’ application first was logical and sensible. If the claim was struck out, the application to strike out the defence became irrelevant.

3. The County Court Judge had correctly dismissed the appeal, which was confined to the procedural order of hearing. The claimant’s additional complaints about alleged conspiracy, non-compliance with directions, costs, proposed director disqualification and the conduct of the defendants’ solicitors did not make the decision arguably wrong.

4. The proposed appeal raised no important point of principle or practice, disclosed no other compelling reason for a hearing and had no reasonable prospect of success. Permission was therefore refused.

• Court of Appeal (Civil Division): Permission to appeal was refused on reconsideration.
• Kingston County Court: His Honour Judge Bishop dismissed the claimant’s appeal against the District Judge’s order.
• Kingston County Court: District Judge Sturdy struck out the claim on 13 January 1999.
• Court of Appeal (Civil Division): Jonathan Parker LJ had previously refused permission on 27 July 2000; the application was renewed because the claimant had been absent through illness.