Ford v Mulder

Section 54(4) of the Access to Justice Act 1999 removes the Court of Appeal’s jurisdiction to hear or review a High Court judge’s refusal of permission to appeal from a County Court order. The Court of Appeal retains jurisdiction over a related costs order, but permission should be refused where the proposed appeal has no realistic prospect of success. A party is not automatically entitled to an adjournment to obtain legal advice where there was an opportunity to obtain advice.

The applicant sought to reinstate an application for permission to appeal which Dyson LJ had dismissed in his absence. He stated that he had received no notice of that hearing, and the court accepted that account for the purpose of considering the application.

The underlying proceedings concerned possession of a residence following the breakdown of an unmarried relationship. The Lambeth County Court made a possession order after finding that the applicant had no beneficial interest and remained in occupation after permission to occupy had ended. Ferris J refused permission to appeal and ordered costs against the applicant. The central issues were whether the Court of Appeal could revisit the possession decision and whether there was any viable appeal against the costs order.

1. Application to reinstate. The court assumed that the applicant had not received notice of the earlier hearing and considered the application afresh.
2. Underlying possession order. The County Court had accepted evidence that the registered proprietor had funded the deposit, mortgage repayments, insurance and council tax. The applicant’s payments did not establish a beneficial interest for the purposes of Part 4 of the Family Law Act 1996. His permission to occupy had expired, so the possession claim fell within order 24 of the County Court Rules. The County Court judge had given him an opportunity to be heard. He was not entitled as of right to an adjournment to obtain legal advice, particularly as he had already had an opportunity to obtain it.
3. Jurisdiction. Section 54(4) of the Access to Justice Act 1999 deprived the Court of Appeal of power to hear an appeal from, or otherwise review, Ferris J’s refusal of permission to appeal from the County Court order. The court therefore had no jurisdiction to grant a further appeal concerning the possession order.
4. Costs order and disposition. The Court of Appeal did have jurisdiction to grant permission to appeal against Ferris J’s costs order. However, the hearing had been on notice, the respondent had successfully opposed the application, and the costs order was plainly within the judge’s discretion. There was no possible prospect of success. Dyson LJ had therefore been correct, and permission to appeal against the costs order was refused.

1. Court of Appeal (Civil Division): The application to reinstate the earlier permission application was considered on the assumption that the applicant had received no notice. The court held that it could not review the refusal of permission concerning the County Court possession order and refused permission concerning costs. [2001] EWCA Civ 1419
2. Court of Appeal (earlier procedural stage): Dyson LJ dismissed the applicant’s permission application in his absence on 22 February 2001.
3. Queen’s Bench Division: Ferris J refused permission to appeal from the County Court possession order on 6 October 2000 and made a costs order against the applicant.
4. Lambeth County Court: Judge Cox made an order for possession on 24 May 2000.