Brighton & Hove City Council v Gill

On a second appeal from a county court decision made on appeal, an application for permission belongs in the Court of Appeal. A further application to a county court judge is outside that judge’s jurisdiction. The Court of Appeal must apply the heightened second-appeal threshold of an important point of principle or practice, or another compelling reason. Where the lower courts may not have fully considered material evidence relevant to compliance with a possession order, and the available information is unsatisfactory, the Court may adjourn the permission application for an inter partes hearing. It may stay execution of the possession warrant pending that hearing.

A tenant facing execution of a suspended possession order sought permission to appeal after a district judge refused to suspend a possession warrant and His Honour Judge Kennedy dismissed the appeal and refused leave. The tenant then obtained a further county court hearing before His Honour Judge Hayward, who purported to refuse permission. The Court of Appeal held that this route was wrong because the decision under challenge had itself been made on appeal. The central issues were the proper forum, the second-appeal permission threshold, and whether unresolved evidence concerning housing benefit and income support justified further consideration.

Lord Justice Mance made an interlocutory order rather than determining permission or the merits of the proposed appeal.

1. Proper appellate route. Under Practice Direction 52, an application for permission to appeal from a county court decision which was itself made on appeal must be made to the Court of Appeal. If permission is granted, the appeal is heard there. His Honour Judge Hayward therefore had no jurisdiction to determine the renewed application.
2. Second-appeal threshold. The application was governed by Civil Procedure Rules rule 52.1(3) (2). Permission could be granted only if the proposed appeal raised an important point of principle or practice, or there was some other compelling reason for the Court of Appeal to hear it. Mance LJ considered it very difficult to see how that threshold could be satisfied, but directed that the matter receive further consideration.
3. Reasons for adjournment. The courts below appeared not fully to have considered the tenant’s case that he had relied on income support to meet the additional weekly payment required by the possession order. They also appeared to have relied on informal checks by the council concerning benefit applications, without the information being reduced to evidence. Possible records of applications to the job centre and benefit authorities could therefore alter the assessment of compliance with the order.
4. The permission application was adjourned for an inter partes hearing before two members of the Court of Appeal, with any appeal to follow if permission were granted. Execution of the possession warrant was stayed pending that hearing. There was no order for costs.

• Court of Appeal (Civil Division). The Court treated the matter as a renewed application for permission to appeal against His Honour Judge Kennedy’s decision, adjourned it for an inter partes hearing, and stayed execution of the possession warrant.
• Lewes County Court. A suspended possession order had been made subject to payment of rent and weekly arrears. District Judge Lay later dismissed an application to suspend the warrant. His Honour Judge Kennedy dismissed the appeal and refused leave to appeal.
• Further county court hearing. His Honour Judge Hayward purported to determine and refuse permission to appeal. The Court of Appeal held that he lacked jurisdiction because the decision under challenge had itself been made on appeal.