Markos v Goodfellow & Ors

Permission for a second appeal is exceptional, particularly in a minor boundary dispute where further litigation may generate disproportionate cost and aggravation. Nevertheless, permission may properly be granted where there is an arguable concern that the procedure used below did not comply with the proper processes of the law or the Civil Procedure Rules 1998. Proportionality may explain an attempt to resolve proceedings informally, but it does not remove the need to apply the prescribed procedural rules. The grant of permission in such circumstances does not necessarily involve criticism of the decision refusing permission below.

Mrs Markos sought permission for a second appeal concerning a boundary dispute. His Honour Judge Thompson had given judgment in the Southend County Court. Mitting J refused permission to appeal, after accepting an undertaking that the respondents would apply under the slip rule to correct the county court order and awarding Mrs Markos £2 damages.

A Deputy Master held that there was no further right of appeal, referring to section 54(4) of the Access to Justice Act 1999, CPR 52.2 and paragraph 4.8 of Practice Direction 52. Mrs Markos challenged the Deputy Master's direction and the procedure adopted by Mitting J.

1. Permission granted. Lord Justice Pill granted permission to appeal against the Deputy Master's direction. A stay was imposed on enforcement of the costs order dated 29 January 2001, pending resolution of the appeal, subject to the appeal being pursued with all reasonable diligence.
2. Second appeals are rarely permitted. The guidance in Clarke v Perkes [2000] All ER 1 was relevant, and the Deputy Master's general approach was understandable.
3. The exceptional feature was the procedure followed after Mitting J refused permission. He accepted an undertaking to apply to the county court under CPR 40.12 to correct the order, although the correction would be substantial and the order did not specify the permitted variations. The procedure therefore raised an arguable concern about whether the proper processes of the law and the CPR had been appropriately applied.
4. Proportionality was a legitimate concern. The dispute concerned only a small amount of land, and further litigation could produce substantial cost, worry and aggravation. Those considerations did not, however, prevent the Court from allowing the applicant the opportunity to put her procedural points before it.
5. The grant of permission was made without criticism of the Deputy Master, whose decision was fully understandable in the circumstances.

• Court of Appeal (Civil Division): granted permission to appeal against the Deputy Master's direction refusing any further right of appeal.
• Southend County Court: His Honour Judge Thompson gave judgment on 29 January 2001 in the boundary dispute.
• High Court: Mitting J refused permission to appeal, while accepting an undertaking to apply under CPR 40.12 to correct the county court order.