Crown Estate Commissioners v Alexander

Permission to appeal requires a real prospect of success. On the assumed facts, a person could not establish such a prospect by asserting that a bank which supplied a favourable reference must meet the person’s later tenancy obligations. The reference was sought to enable the tenancy and disclosed no arguable cause of action by the applicant against the bank.

Under the Access to Justice Act 1999, section 54(4), the Court of Appeal has no jurisdiction to entertain an appeal against a lower court’s refusal to grant permission to appeal to itself. The proper course is a fresh application to the Court of Appeal.

The Crown Estate Commissioners brought possession proceedings against Anthony Alexander, their tenant, alleging rent arrears and termination of the assured shorthold tenancy. Alexander sought to join National Westminster Bank Plc as a Part 20 defendant and to transfer the proceedings to the High Court. He relied on favourable bank references supplied before the tenancy, contending that the bank should discharge his tenancy obligations if he did not pay.

The County Court ordered possession, dismissed the joinder application, refused permission to appeal, and later refused a further stay application. Alexander made two applications to the Court of Appeal. He withdrew the proposed appeal concerning possession and did not pursue the costs challenge. The remaining issues were whether the proposed claim against the bank had a real prospect of success and whether the Court of Appeal had jurisdiction to entertain an appeal against refusal of permission by the lower court.

1. Disposition. Permission to appeal against the refusal to join National Westminster Bank Plc as a Part 20 defendant was refused. The proposed appeal concerning possession was withdrawn, and the costs challenge was not pressed. The remaining applications were dismissed so far as they were not withdrawn.
2. Real prospect of success. The ordinary test for permission to appeal was whether the proposed appeal had a real prospect of success. The relevant question was whether Mr Alexander could persuade the Court of Appeal that the bank’s favourable reference gave him a cause of action against the bank. The court held that there was no such prospect. The reference was precisely what Mr Alexander wanted in order to obtain the tenancy. On the assumed facts, it did not make the bank responsible for his unpaid rent. The court did not need to speculate whether the tenancy would have been granted without the reference. Any possible claim by the landlord against the bank for breach of a duty of care did not provide Mr Alexander with a cause of action.
3. Jurisdiction. The applications challenging the refusal of permission to appeal by the County Court were misconceived. Section 54(4) of the Access to Justice Act 1999 deprived the Court of Appeal of jurisdiction to entertain an appeal against a court’s refusal to grant permission to appeal to itself. The proper course was a fresh application to the Court of Appeal, which Mr Alexander had made.
4. Consequential matters. Following withdrawal of the possession appeal and acceptance of possession, there was no remaining basis for a stay. The further stay application had nothing left in it. The order was: permission to appeal refused.

• Court of Appeal (Civil Division): Permission to appeal was refused. The proposed appeal concerning possession was withdrawn, and the remaining applications were dismissed so far as not withdrawn.
• Central London County Court: District Judge Lightman ordered possession and gave judgment for rent arrears. His Honour Judge Wakefield dismissed the application to join National Westminster Bank Plc and refused permission to appeal. His Honour Judge Hallgarten QC refused a further application for a stay.