Fawdrey & Co (a Firm) v Murfitt

Permission to appeal may be granted where a technical challenge raises factual and legal questions concerning the trial judge’s jurisdiction, and those questions are fit for consideration and potentially significant. Permission may be confined to the jurisdictional issue. The court may manage the appeal proportionately by directing that it proceed on the factual material already available, while permitting intervention by an interested public department or consideration of an amicus curiae.

Fawdrey & Co (a Firm) v Murfitt arose from a claim dismissed by Her Honour Judge Davies at Portsmouth District Registry on 26 January 2001. The proceedings were in the Queen’s Bench Division, but Judge Davies was not approved under section 9 to try High Court actions. The presiding judge, Mr Justice Toulson, appeared to have transferred the case to the Technology and Construction Court, where she was entitled to sit.

The claimant applied for permission to appeal, raising issues about the transfer and its consequences for the judge’s jurisdiction. The defendant was not represented. The central question was whether the jurisdictional challenge was fit for consideration on appeal.

Lord Justice Latham, sitting on the application for permission to appeal, granted permission. The permission was confined to the jurisdictional issue concerning the judge’s power to deal with the case.

1. The court identified factual and legal issues concerning the precise circumstances of the transfer, the consequences of the transfer, and the judge’s consequential jurisdiction. Those issues were fit for consideration and potentially involved significant jurisdictional questions.
2. The court recognised that the challenge was technical and that permission would prolong uncertainty for the defendant. Those practical concerns did not outweigh the need to examine the jurisdictional issues.
3. The appeal was directed to be heard by a court of three Lords Justices. The Lord Chancellor’s Department was permitted to intervene if so advised. If it did not intervene, the Treasury Solicitor was asked to consider providing an amicus curiae.
4. To maintain proportionality, the court directed that the appeal proceed on the factual material already before it. Mr Slinn was entitled to put in a statement. The costs of the application were reserved.

• Court of Appeal (Civil Division): Lord Justice Latham granted permission to appeal, limited to the jurisdictional issue. The merits of the claim and the validity of the transfer were not determined.
• High Court of Justice, Queen’s Bench Division, Portsmouth District Registry: Her Honour Judge Davies dismissed the claimant’s claim by order dated 26 January 2001.