May v Luke

Section 54(4) of the Access to Justice Act prevents a further appeal from a decision granting or refusing permission under the statutory appeal-permission procedure. Where permission is refused by the judge below, the Court of Appeal has no jurisdiction to entertain a further application. The same principle applies where the Court of Appeal refuses permission to appeal to the full court. In non-family proceedings, costs generally follow the event, so costs will ordinarily be ordered against an unsuccessful applicant unless there is a reason to depart from the general rule.

Gordon Charles Luke sought permission to appeal from an order made by His Honour Judge Overend in the Plymouth County Court on 9 March 2001. Judge Overend had refused permission to appeal against an order made by District Judge Crosse on 15 December 2000. Luke also sought permission to appeal the costs order. The central issue was whether the Court of Appeal had jurisdiction to entertain a further challenge after permission to appeal had been refused below.

Lord Justice Ward dealt with two applications.

1. Main application. Section 54(4) of the Access to Justice Act removed any appeal against a decision under the section granting or refusing permission. District Judge Crosse was the first judge for this purpose. An appeal from his order required permission from him or from the appellate court, constituted in this instance by His Honour Judge Overend. Once Judge Overend refused permission, the proposed appeal to the Circuit Judge could not proceed. There was no further appeal from that refusal to the Court of Appeal. Ward LJ therefore had no jurisdiction to entertain Luke’s main application.
2. Further appellate route. Ward LJ explained that the same rule applied where the Court of Appeal refused permission to appeal to the full Court of Appeal. There was then no further right of appeal to the House of Lords. He noted that the position might not apply in the same way to family proceedings, but held that it applied to the present case.
3. Costs application. Ward LJ had jurisdiction to consider permission to appeal the costs order. Luke accepted that the relief would be largely academic because he could not pay the costs. In any event, costs followed the event as a general rule. The application before Judge Overend had failed, and there was no reason to depart from that rule. The costs order was realistic, and there was no realistic prospect of successfully challenging it.

Both applications were dismissed. The formal order was: application dismissed.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1849, Ward LJ held that the Court of Appeal had no jurisdiction to entertain the main permission application and dismissed the application concerning costs.
• Plymouth County Court: His Honour Judge Overend refused permission on 9 March 2001 to appeal District Judge Crosse’s order.
• Plymouth County Court: District Judge Crosse had made the underlying order on 15 December 2000.