Beedell v West Ferry Printers Ltd

Permission to appeal should not ordinarily be set aside merely because the appeal is bound to fail. Under Part 52.9 of the Civil Procedure Rules 1998, the court must identify a compelling reason and apply the overriding objective. Setting aside may be unjust where it would produce an effectively unappealable decision on a controversial legal issue and prevent an application for further permission. The proper course may be to retain permission and dismiss the appeal, preserving the possibility of further appellate review. The court also confirmed the binding effect of the range of reasonable responses test in unfair dismissal cases and recorded that the contrary approach in Haddon v van den Bergh Foods Ltd [1999] ICR 1150 had been disapproved.

James Beedell was dismissed by West Ferry Printers Ltd after a violent incident. The Employment Tribunal dismissed his complaints of unfair dismissal and dismissal for trade union activities, but found in his favour on wrongful dismissal.

The Employment Appeal Tribunal dismissed his appeal and allowed the employer’s cross-appeal on wrongful dismissal. Permission to appeal to the Court of Appeal had been granted before the decision in Foley, which confirmed the binding status of the conventional unfair-dismissal test. The employer applied to set permission aside under Part 52.9 of the Civil Procedure Rules 1998. The central issue was whether justice required permission to be withdrawn where the appeal was conceded as bound to fail.

Unanimous decision. Lord Justice Mummery gave the first judgment. Lord Justices May and Aldous agreed.

1. The application to set aside permission was governed by Part 52.9 of the Civil Procedure Rules 1998. The power could be exercised only where there was a compelling reason. Part 1.1 and Part 1.2 required the court to apply the overriding objective when exercising that power and to ask whether setting permission aside would deal with the case justly.
2. The court treated the consequences of setting permission aside as decisive to that assessment. Section 54(4) of the Access to Justice Act 1998 prevented an appeal against a refusal of permission. Setting permission aside would therefore prevent an application to the Court of Appeal and leave the appellant unable to seek permission from the House of Lords. It would create, in effect, an unappealable decision in an area which Foley had recognised as controversial.
3. The respondent’s concern about further costs did not outweigh that procedural injustice. The just course was to refuse the application, retain permission, and dismiss the appeal on the appellant’s concession that it would fail whichever substantive test applied. The appellant would thereby remain able to seek permission to appeal further, subject to the discretion of the court hearing that application.
4. The court recorded that Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden [2000] ICR 1283 had made the range of reasonable responses test binding on the Court of Appeal and lower courts and tribunals. It also recorded that the different approach applied in Haddon v van den Bergh Foods Ltd [1999] ICR 1150 had been disapproved. The substantive unfair-dismissal issue was not independently determined because the appeal was conceded.

The application to set aside permission was refused. The appeal was dismissed. The respondent received its costs up to and including 22 November 2000; thereafter costs were to be paid by the respondent. Permission to appeal to the House of Lords was refused.

• Court of Appeal: [2001] EWCA Civ 400, 15 March 2001. Application to set aside permission refused and appeal dismissed.
• Employment Appeal Tribunal: 7 July 2000. Appeal dismissed; employer’s cross-appeal on wrongful dismissal allowed.
• Employment Tribunal: 14 December 1999. Complaints of unfair dismissal and dismissal for trade union activities dismissed; employee’s wrongful-dismissal claim initially succeeded.