Ali v National Westminster Bank Plc

An order refusing permission to appeal from a lower appellate court is not itself appealable to the Court of Appeal. Where permission to appeal has not been granted, an application presented as a further appeal is misconceived and must be struck out for want of jurisdiction under section 54(4) of the Access to Justice Act 1999.

If the lower court had actually heard and determined the appeal, any further appeal would be a second appeal. Permission would then require an important point of principle or practice, or some other compelling reason. A case plainly lacking such a point cannot proceed.

Mr Ali brought proceedings against National Westminster Bank Plc concerning alleged breaches of duty as mortgagee and an alleged commitment to make a further advance. Master Moncaster set aside a default judgment, struck out the further-advance allegations and stayed the remaining undervalue claim unless the bank pursued the debt.

Mr Ali sought permission to appeal to Lawrence Collins J. Although the drawn order used language referring to an appeal and affirming the Master’s order, the judge’s judgment showed that he had dismissed an application for permission to appeal. Mr Ali then applied to the Court of Appeal. The central issue was whether this Court had jurisdiction to entertain that application.

1. Application dismissed. Permission to appeal was refused because the Court of Appeal had no jurisdiction to entertain an appeal from an order refusing permission to appeal from a lower appellate court.
2. The wording of the order made by Lawrence Collins J was equivocal. It referred to an appeal and purported to affirm the Master’s order, but it also dismissed an application. The judge’s reasons clearly showed that he had dealt with an application for permission to appeal, not the appeal itself.
3. Section 54(4) of the Access to Justice Act 1999 imposed the relevant statutory restriction. The Court of Appeal relied on the observations in Cameron McDonald, Tanfern Limited (Practice Note) [2000] 1 WLR 1311.
4. Accordingly, Mr Ali’s application was misconceived and had to be struck out. The Court had no jurisdiction to consider the merits of the proposed challenge to the Master’s order.
5. Chadwick LJ added that, if Lawrence Collins J had in fact heard an appeal, the proposed application would have been a second appeal within section 55(1) of the Access to Justice Act 1999. Permission could then be granted only if the appeal raised an important point of principle or practice, or there was some other compelling reason. The proposed appeal plainly did not satisfy that test.
6. In any event, the Master’s order was plainly correct and the judge was plainly correct to conclude that there were no grounds for appellate interference.

• Court of Appeal (Civil Division): the application for permission to appeal was dismissed for want of jurisdiction under section 54(4) of the Access to Justice Act 1999.
• Chancery Division: Lawrence Collins J dismissed Mr Ali’s application for permission to appeal from the Master’s order.
• Master Moncaster: set aside the default judgment, struck out the further-advance allegations and stayed the undervalue claim unless the bank pursued recovery of the debt.