National Westminster Bank Plc v Smillie

Before permission to appeal can be granted, the court must be satisfied that the proposed appeal has a real prospect of success. Where the procedural history is unusual and the material before the court is insufficient for a fair determination, the court may adjourn rather than finally refuse permission. The adjourned hearing should be inter partes where the respondent’s submissions are needed. The respondent may be directed to attend and provide a skeleton argument addressing the merits of the applications. An adjournment does not indicate that the application is meritorious and may expose the applicant to additional costs.

National Westminster Bank Plc v Smillie concerned applications by Mrs Smillie arising from long-running proceedings in which the bank sought to enforce charges over her properties.

She sought permission to appeal against orders made by His Honour Judge Rice on 20 January 1999 and His Honour Judge Yelton on 28 March 2001. She also sought an extension of time and a stay of execution. The procedural background included the setting aside by Mr David Foskett QC, sitting as a Deputy High Court Judge, of a 1994 consent order on which a possession order appeared to have been based.

The central issue was whether the Court of Appeal could fairly determine the applications on the material available when the bank was absent, or whether a further inter partes hearing was required.

Application adjourned. Lord Justice Mummery neither granted nor refused permission to appeal. He directed that the applications be reconsidered at an inter partes hearing attended by the bank.

1. Permission threshold. Permission to appeal should not be granted unless the court is satisfied that the proposed appeal has a real prospect of success. On the material then before the court, that threshold had not been established.
2. Need for further hearing. The case had unusual procedural features. In particular, the consent order of 9 June 1994 had been set aside by Mr Foskett QC on 4 February 1999, while the possession order of 26 November 1998 appeared to have been made for non-compliance with that consent order. This created uncertainty about the correct procedural course before Judge Yelton.
3. Inter partes determination. Although Judge Yelton had taken a clear view, the Court of Appeal was not satisfied that the matter had been satisfactorily resolved between Mrs Smillie and the bank. It was unable to decide fairly whether the case had a real prospect of success without a hearing at which both parties were represented or attended.
4. Directions and costs. The bank was directed to attend the adjourned hearing and to file a skeleton argument explaining its response to the applications and why it contended that the appeal had no real prospect of success. The court warned that the adjournment was not necessarily beneficial to Mrs Smillie, since costs incurred by the bank in successfully opposing the applications might be added to the security claimed over the properties.

1. Court of Appeal (Civil Division) — On 20 July 2001, the court adjourned the applications and directed an inter partes hearing with the bank’s attendance and skeleton argument.
2. Southend County Court — His Honour Judge Yelton’s order of 28 March 2001 dismissed applications to amend and reinstate the appeal, permitted the bank to apply for a warrant of execution, and refused permission to appeal.
3. Southend County Court — His Honour Judge Rice’s order of 20 January 1999 directed that an appeal be adjourned pending resolution of an appeal in the High Court in the same matter.
4. High Court — Mr David Foskett QC, sitting as a Deputy Judge, made an order dated 4 February 1999 setting aside the 9 June 1994 consent order.