Aslam v Tahmasaby

The Court of Appeal has no jurisdiction under section 54(4) of the Access to Justice Act 1999 to entertain an appeal against an appeal court’s refusal of permission to appeal on the merits. The court may, however, have jurisdiction concerning ancillary orders or an alleged failure to afford a fair hearing. A judge has a wide discretion whether to reopen a hearing, and that discretion will rarely be interfered with where the relevant arguments could have been advanced at the original hearing.

The claimant obtained judgment in the Central London County Court for £365 damages for breach of contract concerning a defective second-hand car. The trial judge found a failure to mitigate loss. Crane J refused permission to appeal, holding that there was no realistic prospect of success. He later refused to reopen the application. The claimant sought permission to appeal both decisions, alleging legal error and an unfair hearing. The central issues were the Court of Appeal’s jurisdiction and whether there was any realistic prospect of a successful appeal.

1. Application dismissed. The court had no jurisdiction under section 54(4) of the Access to Justice Act 1999 to entertain an appeal against Crane J’s refusal of permission to appeal on the merits.
2. The court accepted that it could have jurisdiction to consider an application concerning an ancillary order or a failure by a judge to afford a party a fair hearing. The authorities cited for that jurisdiction were Clark v Inspector of Taxes and Parks [2000] 4 All ER 1 and Foenander v Bond Lewis [2001] 2 All ER 1019.
3. Crane J had carefully considered the applicant’s written and oral submissions. Judicial interruption for the purpose of testing an argument did not establish unfair treatment. There was no realistic prospect that an appeal would succeed on that ground.
4. A judge has a wide discretion whether to reopen a hearing. Reopening will ordinarily be appropriate only in exceptional circumstances, since litigation must have an end and parties and counsel should present all relevant matters at the original hearing. There was no basis for interfering with Crane J’s refusal to reopen the application.
5. The application was, in substance, an attempt to challenge the merits of the refusal of permission to appeal, which Parliament had excluded from the Court of Appeal’s jurisdiction.

• Central London County Court: On 26 April 2001, His Honour Judge Halgarten QC gave judgment for the claimant for £365 damages for breach of contract.
• High Court: On 11 July 2001, Crane J refused permission to appeal. On 13 July 2001, he refused to reopen the application.
• Court of Appeal (Civil Division): On 13 December 2001, Lord Justice Clarke dismissed the application. The court held that section 54(4) of the Access to Justice Act 1999 barred an appeal on the merits and that no arguable fair-hearing or ancillary-order ground existed.