Markos v Goodfellow & Ors

A procedural bar on appealing a decision refusing permission to appeal applies according to the substance of the decision. It does not prevent a further appeal where a judge purports to refuse permission but in substance grants permission and proceeds to determine the appeal, even on a limited basis.

The slip rule is confined to correcting accidental slips or omissions. It cannot be used to correct a substantive misdirection or to reconstruct the legal consequences of findings already made. The appropriate course is to grant permission to appeal and allow the appellate court to determine the issue.

The case concerned an appeal from a decision of Deputy Master di Mambro concerning the procedural consequences of an order made by Mitting J. Mitting J had purported to refuse permission to appeal from findings of HHJ Thompson concerning a minor trespass and boundary dispute, but had stated that the county court judge was wrong and identified the order that should have been made, including nominal damages.

The Deputy Master considered that paragraph 4.8 of the practice direction to Part 52 of the Civil Procedure Rules barred any further appeal. The central issue was whether Mitting J had genuinely refused permission or had, in substance, dealt with the appeal.

1. Substance of Mitting J's order. Mitting J correctly recognised that the county court judge had found a trespass and that any trespass to land, however small, was actionable and could attract nominal damages. He nevertheless purported to refuse permission to appeal while identifying the declaration and damages order that should have followed. In substance, he had dealt with the appeal and allowed it in part.
2. Slip rule. CPR 40.12 permits correction of an accidental slip or omission. It cannot properly be used where the judge has made a substantive error in directing himself as to the legal consequences of findings of fact. The county court judgment did not contain merely an accidental omission: the judge had treated the trespass as de minimis and had failed to consider the usual remedy of an injunction or the alternative of damages.
3. Effect of paragraph 4.8. The prohibition in paragraph 4.8 of the practice direction to Part 52 is directed to a genuine decision allowing or refusing permission to appeal. The court must examine the substance of the order. A judge cannot defeat a further appeal by describing an order as a refusal of permission when, in substance, the judge has determined the appeal.
4. Disposition. The grant of permission to appeal against Deputy Master di Mambro's order was confirmed. The issue for the appellate court was whether the Deputy Master's conclusion that no further appeal was available was wrong and, if so, whether an extension of time and permission to appeal against Mitting J's order should follow. Costs of the hearing were costs in the appeal, and the stay of enforcement of the costs order was continued.

• Southend County Court: HHJ Thompson found a limited trespass but treated it as de minimis and dismissed the claim.
• Mitting J: Permission to appeal was purportedly refused, although the judge held that the trespass was actionable and identified an order for a declaration and nominal damages.
• Court of Appeal (Civil Division): The court held that Mitting J's order had arguably dealt with the appeal in substance, so paragraph 4.8 of the practice direction to Part 52 did not necessarily bar a further appeal. Permission to appeal the Deputy Master's order was confirmed.