Jones v Ungley & Anor

A refusal by an appeal court to grant permission to appeal cannot itself be appealed under section 54(4) of the Access to Justice Act 1999, although the rules may permit a further application for permission. Ancillary orders, such as an adjournment or costs order, may theoretically be appealable with permission. An adjournment is a matter for judicial discretion. There is no general requirement for a transcript before an application for permission to appeal can fairly be determined. The judge may assess fairness in all the circumstances, including whether the applicant has had sufficient opportunity to present the case.

The claimant sought permission to appeal against Langley J’s refusal of permission to appeal from an order of His Honour Judge Thompson QC. The county court had struck out her professional-negligence claim against her former solicitors and barrister, and entered judgment for the defendants.

Langley J refused an adjournment sought because the claimant lacked legal representation and did not have the county court judgment transcript. He then refused permission on the merits. Before the Court of Appeal, the claimant sought permission to appeal Langley J’s decision and permission to adduce fresh evidence. The central issues were jurisdiction under section 54(4) of the Access to Justice Act 1999 and whether Langley J had properly exercised his discretion concerning the adjournment.

1. Jurisdiction. The application could not be entertained insofar as it sought to appeal the refusal of permission to appeal. Section 54(4) of the Access to Justice Act 1999 expressly bars such an appeal, subject to any further application for permission authorised by the rules.
2. Ancillary orders. The Court of Appeal accepted that an appeal might theoretically lie, with permission, against a separate costs order or refusal of an adjournment. The court referred to Clark v Perks, where such appeals were described as likely to be very rare. The claimant’s challenge to the refusal of an adjournment was therefore considered separately.
3. Adjournment and representation. Whether to adjourn was within the judge’s discretion. A litigant has no legal right to representation, even where the case is hopeless. Langley J was entitled to refuse an adjournment based on the possibility that legal aid might later become available.
4. Transcript. There is no rule requiring a transcript before an application for permission to appeal can be considered. The question is whether the application can fairly be determined without one. Langley J had the claimant’s materials and was entitled to conclude that he could fairly decide the application.
5. Disposition. The application was refused, partly for want of jurisdiction and partly because there was no basis for interfering with Langley J’s discretionary decision. The proposed appeal on the merits would in any event have had no realistic prospect of success. There was no order as to costs.

• Court of Appeal (Civil Division): refused permission to appeal and refused permission to adduce fresh evidence.
• High Court, Langley J: refused permission to appeal against the county court order and refused an adjournment.
• Bournemouth County Court, His Honour Judge Thompson QC: struck out the professional-negligence claim and gave judgment for the defendants.