Ogle v Metcalfe Mather Pepper & Anor

The Court of Appeal has no jurisdiction to hear an appeal against a High Court judge’s decision granting or refusing permission to appeal where the statutory scheme prohibits such an appeal. The overriding objective cannot create jurisdiction or displace the restriction in Access to Justice Act 1999, section 54(4). A further appeal may theoretically lie against an ancillary order, such as costs, but only with permission and in a very rare case. The court may also refuse to revisit the underlying merits when reviewing the costs order.

Master Moncaster struck out the claimant’s negligence claim against two firms of solicitors. Neuberger J refused permission to appeal from that order after considering written representations and hearing the matter in open court. He also ordered the claimant to pay costs, summarily assessed at £1,620, later stated in this judgment as £1,650.

The claimant applied to the Court of Appeal for permission to appeal against the whole order. The central issue was whether the Court of Appeal had jurisdiction to entertain an application challenging the High Court judge’s refusal of permission to appeal.

1. Jurisdiction. The application for permission to appeal against Neuberger J’s refusal was dismissed. Part 52 Practice Direction, paragraph 4.8, and Access to Justice Act 1999, section 54(4), made clear that there was no appeal from an appeal court’s decision to grant or refuse permission to appeal. The Court of Appeal’s jurisdiction was wholly statutory and gave it no inherent power to entertain such an appeal.
2. The exception identified in Riniker v University College London [2001] 1 WLR 13 and Clark (Inspector of Taxes) v Perks [2001] 1 WLR 17 applied only where it could truly be said that there had been no decision at all. That exception did not arise. The statutory provision did not prevent a further application for permission where the lower court had refused permission, but it did prevent an appeal against the appeal court’s refusal.
3. The overriding objective could not alter that conclusion. It applied when the court exercised a power under the rules or interpreted a rule, but no relevant procedural rule supplied jurisdiction in this case. The governing restriction was statutory.
4. The claimant’s fair-trial argument under the Human Rights Act 1998 did not assist him. His claim had been considered by the Master and his application for permission had been considered by a High Court judge. The court was entitled to prevent a trial where the litigation would be a waste of time, including by striking out the claim.
5. An appeal in theory could be brought against the ancillary costs order, with permission. However, the claimant could not challenge that order by reopening the underlying merits. The respondents were entitled to seek their costs, and there was no basis for interfering with the judge’s discretionary assessment.

Order: Application dismissed.

• Court of Appeal (Civil Division): The application for permission to appeal against the High Court judge’s refusal of permission was dismissed. The court also found no basis to interfere with the ancillary costs order.
• Chancery Division: Neuberger J refused permission to appeal from Master Moncaster’s order striking out the negligence claim and ordered costs.
• High Court (Master): Master Moncaster struck out the claimant’s negligence claim against the respondent solicitors.