Veitch v Avery

Where an application for permission to appeal raises a credible concern about procedural unfairness, or suggests that potentially material grounds were not considered below, the court may adjourn the application on notice to the respondent before deciding permission. The court need not finally determine at that stage whether summary judgment was appropriate or whether alleged negligence caused loss. For a second appeal, Order 52 requires an important point of principle or practice, or another compelling reason for the appeal to proceed.

Mr and Mrs Veitch sought permission to appeal against Judge Overend’s order of 17 August 2001. Judge Overend had granted Mr Avery leave to appeal from District Judge Wainwright’s order of 29 June 2001 and, after hearing that appeal, dismissed the claimants’ negligence claims against their former solicitor under the summary judgment procedure.

Before Ward LJ, Mr Veitch raised the late receipt of the respondent’s skeleton argument, an apparently unconsidered amendment, and further allegations concerning the underlying possession proceedings and settlement. The respondent did not attend. The central issue was whether the permission application should be determined immediately or adjourned so that those matters could be addressed on notice.

1. Application allowed. The application was adjourned for hearing on notice to Mr Avery. Permission to appeal itself was not finally determined.
2. Ward LJ considered that the late provision of the respondent’s skeleton argument might raise a procedural irregularity, although it remained open whether any unfairness was sufficient to justify a rehearing.
3. The proposed amendment appeared to raise potentially material negligence allegations, including failure to establish that the applicant was in mortgage default, failure to lodge a proper defence and counterclaim, and failures concerning the settlement. The respondent was required to explain why the amendment and other possible grounds had not been addressed below.
4. The court left open whether summary judgment had been appropriate. If the possession order should not have been made, the causation reasoning relied upon below might be weakened.
5. The court invited consideration of assistance from the Bar Pro Bono Unit and directed that the rehearing should, if appropriate, be before two Lords Justices, with the appeal to follow if permission were granted. Ward LJ also noted the separate Order 52 threshold applicable to a second appeal.

1. Court of Appeal (Civil Division): On 5 November 2001, the court allowed the application by adjourning it for hearing on notice to the respondent. Permission to appeal was reserved.
2. Court of Appeal (Civil Division): An order of 30 March 2001 had set aside an order of 2 December 1998, remitted the matter to the County Court, and allocated the action to the multi-track.
3. County Court: On 17 August 2001, Judge Overend granted Mr Avery leave to appeal against District Judge Wainwright’s order and then dismissed the claimants’ negligence claims under the summary judgment procedure.
4. County Court: District Judge Wainwright made the earlier order on 29 June 2001.