Naish & Anor v Bhardwaj

A refusal by a lower appellate court to grant permission to appeal cannot ordinarily be appealed to the Court of Appeal. Section 54(4) of the Access to Justice Act 1999 permits only a further application for permission under the rules. The exception is confined to cases where there was, in substance, no decision at all. A party cannot circumvent the statutory bar by presenting the same issue as an appeal concerning the contents of an appellant’s notice. A real prospect of success is not necessarily sufficient to require permission where proportionality and case-management considerations justify refusal. The Court of Appeal left that broader point open for a case where it was necessary to decide it.

The applicants sought permission to appeal from an order of Mr Justice Blackburne concerning an account taken in partnership proceedings. The judge had allowed an appeal on the issue whether the partnership was terminable at will, but refused permission to appeal on the accounting issue and refused to reinstate that issue in the proposed appellant’s notice.

The applicants argued that the accounting point had a real prospect of success and that the statutory bar did not apply because an earlier appeal had been allowed on another issue. The central question was whether the Court of Appeal had jurisdiction to entertain an application framed as an appeal concerning the appellant’s notice.

1. Application dismissed. The Court of Appeal had no jurisdiction to interfere with the refusals of permission to appeal on the accounting issue.
2. Section 54(4) of the Access to Justice Act 1999 provides that no appeal lies from a decision under the section to give or refuse permission to appeal, subject only to any further application permitted by the rules. The principle was stated in Clark v Perks [2000] 4 All ER 1: the statutory words mean what they say.
3. The limited exception is where there was no decision at all, such as confusion between different applications or papers. The example referred to from Daisystar v Town & Country Building Society [1992] 1 WLR 390 illustrated that narrow jurisdictional possibility.
4. The reasoning in Foenander v Bond Lewis & Co [2001] EWCA Civ 759 was applied. Where both a lower court and a lower-level appeal court have refused permission, the proposed appeal cannot be relitigated higher in the judicial hierarchy. An application to reinstate a ground in an appellant’s notice was merely the formal reflection of the substantive application for permission and could not evade section 54(4).
5. The Court rejected reliance on section 3(1) or section 9(1)(a) of the Human Rights Act 1998 as a means of creating a freestanding right of appeal contrary to section 54(4).
6. The Court observed that every court with jurisdiction to grant permission retains a judicial discretion, subject to primary legislation, the Civil Procedure Rules and practice directions. A real prospect of success may therefore be a necessary condition rather than a sufficient one. The Court expressed no concluded view because the point was unnecessary to the application.

• Court of Appeal (Civil Division): Permission to appeal from Mr Justice Blackburne’s refusal was dismissed.
• High Court, Chancery Division: Mr Justice Blackburne had allowed an appeal on the partnership termination issue but refused permission to appeal on the accounting issue and refused to reinstate that ground.
• Master Bowman: Determined the partnership accounting issue, including the sum due in respect of health centre charges.