Fradkina & Ors v London Borough Of Barnet & Ors

Permission to appeal may be refused where success would serve no useful purpose or merely lead to a renewed application without substantive advantage. A further appeal from a decision already made on appeal from a Master is a second-tier appeal and requires particular justification. An application concerning a claim that has not reached allocation may be premature where the allocation questionnaire remains incomplete, but refusal at that stage does not terminate the claim. Permission may also be refused where the appellant has exhausted available remedies on the issue.

The Court of Appeal considered three consolidated applications for permission to appeal.

1. One application concerned refusal of judgment in default in a negligence claim because service of the relevant notice had not been proved.
2. Another concerned a human-rights claim arising from a search of premises and arrests. The lower court had refused an application for the claim to be tried because the allocation questionnaire had not been completed.
3. The remaining application concerned housing conditions and the making of a care order. The housing decision of Curtis J had itself been made on appeal from the Master, while remedies concerning the care order had already been exhausted.

The central issues were whether any proposed appeal would serve a useful purpose, whether a second-tier appeal was justified, and whether the relevant claims or issues remained procedurally open.

Lord Justice Mantell refused all three applications for permission to appeal.

1. Default judgment. The refusal of judgment in default followed the absence of proof that the required notice had been served. Even if permission were granted, the only practical result would be a renewed application before a judge. That would serve no useful purpose at this stage. The underlying action against the hospital continued.
2. Human-rights claim. The application to have the claim tried had been made before the proceedings were ready for allocation. The allocation questionnaire had not been completed. The refusal did not bring the claim to an end. The claimant could complete the questionnaire and continue the proceedings.
3. Housing claim. The council’s duty was to address the claimant’s housing needs. It was not responsible for providing the means by which she could buy a house. The decision below had been made on appeal from the Master and was therefore a second-tier appeal. No particular justification for a further appeal was shown, and the proposed appeal had no merit.
4. Care order and contact. The remedies concerning the care order had already been exhausted, including refusal of permission to appeal. The complaint about lack of contact was also without merit because reasonable arrangements and travel assistance had been offered, but not accepted.

The judge declined to adjourn the applications, having regard to the history of the proceedings and the expense incurred by the council. He nevertheless encouraged the claimant to obtain qualified advice. The formal order was that the applications were refused. The transcript was to be provided at public expense.

1. Court of Appeal (Civil Division): Under [2001] EWCA Civ 2002, Mantell LJ refused all three applications for permission to appeal.
2. High Court: Grigson J refused judgment in default for want of proof of service and refused an application to have the human-rights claim tried before allocation. Curtis J rejected the housing and care-order arguments.
3. Master: The housing proceedings had previously been considered at Master level before the matter came before Curtis J on appeal.