Brown & Anor v Fenwick

A second appeal requires both a real prospect of success and satisfaction of the restrictive permission threshold in CPR rule 52.13. The court need not decide whether an alleged failure to apply an established procedural principle can itself raise an important point of principle or practice where the alleged failure is not made out.

In deciding relief from a procedural default, a judge need not use the word proportionality. It is sufficient that the reasoning shows that the judge applied the overriding objective, weighed the serious consequences for the defaulting party, and considered the available procedural response. An appellate court will not interfere merely because another judge might have exercised the discretion differently.

The claimants sought damages following a road traffic accident. Their pleaded losses included business loss, pension loss and care costs, but they did not provide full particulars despite prolonged requests and an order requiring a schedule of loss.

His Honour Judge Bartfield refused an extension of time. On appeal, Owen J considered the CPR rule 3.9 factors afresh and upheld the refusal. The claimants then sought permission for a second appeal to challenge Owen J’s decision of 15 March 2001.

The central issues were whether the proposed appeal met the second-appeal threshold and had a real prospect of success, particularly because refusal of the extension substantially limited the claim.

1. Application for permission to appeal dismissed unanimously. May LJ gave the principal reasons. Rix LJ agreed, and Ward LJ agreed that the application should be dismissed.
2. The proposed appeal did not satisfy the restrictive second-appeal requirement in CPR rule 52.13. The court left open whether a failure to apply an established point of principle or practice could itself satisfy rule 52.13(2)(a). Even assuming that it could, Owen J had not made either alleged error.
3. Owen J had addressed proportionality in substance. He referred to the overriding objective and to dealing with cases justly, including expedition and fairness. He also expressly took account of the serious consequences for the claimants before refusing the extension. An express use of the word proportionality was unnecessary.
4. Owen J had also considered the availability of alternative procedural measures. He had referred to Biguzzi v Rank Leisure Plc, including its recognition that alternative powers may often achieve a just result. The application before him was itself for a short extension subject to an unless order. The absence of an express further analysis of alternatives therefore did not establish an error.
5. The proposed appeal also had no real prospect of success. Although aspects of the first-instance assessment might be regarded as hard on the claimants, Owen J was entitled to find that expert assistance should have been obtained much earlier and that the discretionary refusal was justified. The claimants’ continued failure to provide the missing particulars reinforced that conclusion.

Ward LJ observed that the proper scope and interrelationship of CPR rule 52.13(2)(a) and (b) might require fuller argument in a future case, especially where plain injustice is alleged. That issue was unnecessary to this decision.

• Court of Appeal (Civil Division): the renewed application for permission to bring a second appeal was dismissed: [2001] EWCA Civ 1481.
• High Court, Queen’s Bench Division: Owen J considered the matter afresh under CPR rule 3.9 and refused the claimants’ appeal from the refusal of an extension of time.
• County Court: His Honour Judge Bartfield refused the claimants an extension of time to provide a full schedule of loss.