Paulson v Bandegani

Access to Justice Act 1999, section 54(4), prevents a further appeal to the Court of Appeal against a lower appellate court’s refusal of permission to appeal. The Court of Appeal nevertheless has jurisdiction to consider permission to appeal against an original order made by that court, including refusal of an adjournment. Such an adjournment decision remains discretionary. Where notice of the hearing was served at the appellant’s home six days earlier, refusal of an adjournment may disclose no arguable error. The court should not reopen the underlying merits where those matters have already been considered and permission to appeal has been refused.

The application arose from prolonged tenancy litigation in the Chester County Court. Judge Edwards QC dismissed several claims, restricted further proceedings concerning the tenancy without leave, and later refused permission to issue a further claim. Thomas J refused permission to appeal, refused an extension of time, and subsequently refused an adjournment of an oral hearing of a renewed permission application. Mr Bandegani, who had not attended that hearing, sought permission to appeal to the Court of Appeal against Thomas J’s orders. The central issue was whether permission could be granted to challenge the refusal of the adjournment, given the separate statutory bar on appealing a refusal of permission to appeal.

Application refused unanimously. Brooke LJ gave the judgment and Tuckey LJ agreed.

1. The court had no jurisdiction to entertain an appeal against Thomas J’s refusal of permission to appeal, by reason of section 54(4) of the Access to Justice Act 1999.
2. Following Foenander v Bond Lewis & Co, the court did have jurisdiction to consider an application for permission to appeal against an original order made by a judge sitting in an appeal court, including an order refusing an adjournment or an extension of time.
3. On the facts, Thomas J was entitled, in the exercise of his discretion, to refuse the adjournment. The hearing notice had been served at Mr Bandegani’s home six days earlier. The absence of a transcript of Thomas J’s reasons did not justify permission being granted.
4. It would be wrong to investigate the underlying merits further. Two High Court judges had already refused permission in relation to the earlier orders, and Thomas J had twice considered and rejected the challenge to Judge Edwards QC’s latest order.
5. Brooke LJ made further procedural observations. Court orders should be drawn accurately, with the judge consulted where necessary; the court office should explain difficulties concerning transcription of reasons; and the date of receipt of a faxed notice of appeal should be communicated to judges dealing with the appeal.
6. Lower appellate judges should indicate whether an adjournment application appears to be a sham intended to generate a further appeal, and should record reasons where appropriate. The application was therefore refused.

1. Court of Appeal (Civil Division): refused permission to appeal against Thomas J’s refusal of an adjournment.
2. High Court: Thomas J refused permission to appeal against Judge Edwards QC’s orders, refused an extension of time, and later refused an adjournment and permission to appeal.
3. Chester County Court: Judge Edwards QC dismissed the relevant claims, restricted further proceedings concerning the tenancy without leave, and refused permission to issue a further claim.