Woolwich Plc v Barnes

An appellate court has no jurisdiction to entertain an appeal from a judge’s refusal of permission to appeal where the judge did not entertain the underlying appeal. A claim may be struck out for failure to comply with an unless order where the lower court acted within its jurisdiction and discretion, and the proposed appeal has no realistic prospect of success. An application to commit for contempt requires a proper evidential basis; where there is no evidence of bad faith and the communication to the court was proper, permission to appeal may be refused.

Mr Barnes sought permission to appeal three orders of the Queen’s Bench Division. Jacob J had refused an application to commit a solicitor for contempt. Gray J had refused permission to appeal from Master Prebble’s refusal to set aside an unless order, and had struck out Mr Barnes’s claim against solicitors for failure to serve particulars of claim in time. The applications also sought extensions of time, stays and directions. The central issues were whether this court had jurisdiction to entertain an appeal from a refusal of permission and whether the proposed appeals had a realistic prospect of success.

1. Contempt application. Permission to appeal against Jacob J’s refusal to commit the solicitor was refused. There was no evidence of bad faith. The solicitor’s communication to the court, made on behalf of a trustee in bankruptcy, was proper. The application had no conceivable basis for appellate intervention.

2. Jurisdiction. The court had no jurisdiction to entertain an appeal from Gray J’s refusal of permission to appeal where Gray J had refused permission and had not entertained the underlying appeal. The court relied on section 54(4) of the Access to Justice Act 1999 and Clark (Inspector of Taxes) v Perks [2000] 4 All ER 1, per Brooke LJ at pages 6–7.

3. Striking out. Gray J was entitled to strike out the claim because Mr Barnes had failed to serve particulars of claim within the time required by the unless order. The decision was within the judge’s jurisdiction and discretion, and an appeal had no realistic prospect of success.

4. All applications for permission to appeal were refused. The formal order was: permission to appeal refused.

• Court of Appeal (Civil Division): refused all applications for permission to appeal from orders made by Jacob J and Gray J in the Queen’s Bench Division.
• Queen’s Bench Division: Jacob J refused committal for contempt and Gray J refused permission to appeal from Master Prebble’s order and struck out the claim against the solicitors.
• Master Prebble: refused to set aside an unless order requiring service of particulars of claim, failing which the claim would be struck out.