The Chief Constable of Essex Police v Raymond Cook

On an application for permission to bring a second appeal, the applicant must satisfy both the ordinary test for setting aside a default judgment and the stricter second-appeal threshold. Under CPR rule 13.3(1), the applicant must show a real prospect of successfully defending the claim, or another good reason for setting aside the judgment. Under CPR 52.13, permission for a second appeal requires an important point of principle or practice, or another compelling reason for the Court of Appeal to hear it. The Court should respect finality and proportionality where the lower courts reached conclusions open to them on the evidence.

Raymond Cook obtained a default judgment against the Chief Constable of Essex Police in a damages claim concerning inaccurate information supplied to a sentencing judge. The Chief Constable applied to set aside the judgment, contending that the inaccurate information might have originated from central criminal records rather than Essex Police.

The circuit judge refused the application. Harrison J dismissed the appeal on 17 May 2001. The Chief Constable applied to the Court of Appeal for permission to bring a second appeal, relying on further evidence concerning documents and alleging that the lower courts had conducted a mini-trial and applied the wrong test. The central questions were whether the applicant had a real prospect of successfully defending the claim and whether there was an important point of principle or another compelling reason to hear a second appeal.

1. Application refused. The decision of Harrison J was allowed to stand. No order for costs was made in favour of the proposed respondent.
2. Under CPR rule 13.3(1), the applicant had to show a real prospect of successfully defending the claim, or some other good reason why the default judgment should be set aside. The Court accepted that this was the correct test and rejected the submission that Harrison J had adopted a different test.
3. The lower courts were entitled to conclude that the inaccurate information probably originated with Essex Police. The information concerned an earlier prosecution for which the force was responsible. A letter from Superintendent Gruneberg referring to the force’s records was a powerful pointer towards that conclusion. The possibility of an error in central criminal records did not establish a real prospect of successfully defending the claim.
4. The Court rejected the contention that the lower courts had improperly conducted a mini-trial. The reference to the principle discussed in Swain v Hillman did not alter the conclusion reached on the evidence.
5. The application was also governed by CPR 52.13 because it concerned a second appeal. Permission required an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the appeal. Finality and proportionality were relevant considerations. The possible further evidence did not create a compelling reason, particularly where the lower courts’ decisions were properly open to them.

1. Court of Appeal (Civil Division): Permission for a second appeal refused.
2. High Court: Harrison J dismissed the appeal from the circuit judge’s refusal to set aside the default judgment on 17 May 2001.
3. Circuit court: His Honour Judge Critchlow refused the application to set aside the default judgment on 5 January 2001.