London Borough Of Lewisham v Tolabi & Anor

An appeal concerning possession proceedings is barred where Access to Justice Act 1999, section 54(4) removes the right of appeal to the Court of Appeal. That bar cannot be circumvented by granting permission to appeal.

A costs order made when permission to appeal has been refused may theoretically be appealable if permission is granted. Such permission is exceptional. It should not be granted where deciding the costs appeal would require the Court of Appeal to examine the merits of the possession decision, which Parliament has prohibited it from doing.

A possession order was made against Mr Tolabi in his absence. His application to set it aside was dismissed, and costs were added to the arrears. His subsequent application to His Honour Judge Gibson for permission to appeal was dismissed, although the formal order contained a typing error.

Mr Tolabi applied to the Court of Appeal. The court considered whether it had jurisdiction to entertain an appeal concerning the possession proceedings and whether permission should be granted for an appeal against the costs order.

1. Disposition. Permission to appeal was refused.
2. The formal county court order contained a typing error. In context, it was properly understood as dismissing the defendant’s application for permission to appeal against the order made on 16 January 2001. The order and surrounding circumstances showed that the defendant had lost on the substantive issue.
3. There was no right of appeal to the Court of Appeal against the substantive possession matter. Under Access to Justice Act 1999, section 54(4), an appeal was expressly barred in circumstances of this kind. The position was unchanged even if the county court judge had purported to grant permission.
4. The statutory bar did not categorically prevent an appeal against the costs part of the order, since that aspect had only been considered by His Honour Judge Gibson. However, permission was still required.
5. Applying the approach stated in Clark (Inspector of Taxes) v Perks [2000] 4 All ER 1, an appeal against a costs order made when permission to appeal had been refused was theoretically possible, but permission would be granted only in a very rare case.
6. Permission could not properly be granted here. A successful challenge to the costs order would require examination of the merits of the possession proceedings. That was precisely the exercise prohibited by section 54(4).

• Court of Appeal (Civil Division): London Borough Of Lewisham v Tolabi & Anor [2001] EWCA Civ 1631. Permission to appeal against the costs order was refused.
• Lambeth County Court: District Judge Jacey made a possession order on 14 April 2000. District Judge Worthington dismissed the application to set it aside on 16 January 2001 and ordered costs to be added to the arrears. His Honour Judge Gibson dismissed the application for permission to appeal.