Khan v London Borough Of Merton

A claim brought under Part 8 of the Civil Procedure Rules is treated as allocated to the multi-track for procedural purposes, but is not thereby formally allocated to that track for determining the route of appeal. The special direct route to the Court of Appeal for formally allocated multi-track claims therefore does not apply. An appeal from the county court proceeds to the High Court where the claim was not formally allocated to the multi-track. A further appeal from the High Court to the Court of Appeal requires permission under rule 52.13 and must raise an important point of principle or practice, or involve another compelling reason for the appeal to be heard.

The claimant was a business tenant whose application for a new tenancy under the Landlord & Tenant Act 1954 had been dismissed by His Honour Judge Ellis in the Croydon County Court. The judge found that the claimant had sublet living accommodation and exercised his discretion against renewal.

The claimant appealed to the High Court. Park J dismissed that appeal, holding that there was no basis to challenge the factual finding or the exercise of discretion. The claimant then sought permission to appeal to the Court of Appeal, arguing that the Part 8 procedure meant the case was allocated to the multi-track and that the appeal should have come directly to the Court of Appeal. The central issues were the proper destination of the appeal and whether the requirements for a second-tier appeal were met.

The application for permission to appeal was dismissed, with no order for costs.

1. The jurisdictional argument was misconceived. Although CPR rule 8.9(c) provides that a claim using the Part 8 procedure is to be treated as allocated to the multi-track, that treatment does not amount to formal allocation to the multi-track for the purposes of Article 4 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000.

2. The court applied Tanfern Ltd v Cameron-MacDonald [2000] All ER 801, in which the direct Court of Appeal route was confined to a multi-track claim formally allocated by a court to that track. The exception did not apply to a Part 8 claim treated as allocated to the multi-track under rule 8.9(c).

3. The county court case had not been formally allocated to the multi-track. Park J therefore had jurisdiction to hear the claimant’s appeal, and the claimant was seeking a second-tier appeal from a decision itself given on appeal.

4. Under CPR rule 52.13, permission for such an appeal could be granted only if the proposed appeal raised an important point of principle or practice, or if there was some other compelling reason for the Court of Appeal to hear it. Neither requirement was satisfied. The proposed appeal was bound to fail, and permission was refused.

1. Court of Appeal (Civil Division) dismissed the application for permission to appeal and made no order for costs.
2. High Court — Park J dismissed the claimant’s appeal on 29 June 2001.
3. Croydon County Court — His Honour Judge Ellis dismissed the application for a new tenancy and ordered possession by 21 March 2001.