Banks & Anor v Cox & Anor

Where an application for permission to appeal is listed together with the substantive appeal, the court may separate the permission application and direct that it be heard independently. This is appropriate where an early determination may conclude the litigation and separation will not prejudice the respondent if permission is granted. The court may encourage expedition through the listing office without expressing any view on the merits of the proposed appeal.

The claimants purchased a nursing home and brought proceedings alleging fraudulent misrepresentation against the vendors and their solicitors. Lloyd J dismissed the claims at the first trial. The Court of Appeal granted permission to appeal against the dismissal of the claims against the vendors, and a retrial was ordered.

At the retrial, Lawrence Collins J entered judgment for the claimants against the vendors, ordered an inquiry into damages, made costs orders and granted a freezing order. Permission to appeal was refused, but Sedley LJ directed that the vendors’ application for permission to appeal be heard with any substantive appeal. The second claimant applied to vary that order so that the permission application could be heard separately and promptly.

Application granted. Per Lord Justice Parker, Sedley LJ’s order was varied so that the application for permission to appeal was separated from the substantive appeal.

1. The court considered that separate determination was the proper course in the circumstances. If permission were refused, the litigation would end and the claimants would retain the benefit of the retrial judgment. If permission were granted, the vendors could pursue the substantive appeal at the hearing already contemplated. Separation therefore created no material prejudice to them.
2. The decision was justified by the parties’ serious financial difficulties, the absence of payment towards the claimants’ costs, the freezing order, and the considerable distress and ill-health caused by continuing litigation. The court was entitled to take those practical circumstances into account when managing the appellate process.
3. The court made no formal order for expedition. It nevertheless expressed the expectation that the Civil Appeals Listing Office would avoid unnecessary delay and list the permission application as promptly as reasonably possible.
4. Lord Justice Parker emphasised that he had not seen the action papers and expressed no view on the prospects or merits of the proposed appeal. The order was varied accordingly.

• Court of Appeal (Civil Division): In July 2000, allowed the appeal from Lloyd J’s dismissal of the claims against the vendors and ordered a retrial. Permission to appeal against dismissal of the claim against the solicitors was refused.
• High Court: At the retrial before Lawrence Collins J, judgment was entered for the claimants against the vendors, with damages to be assessed, costs orders, a freezing order and an order for payment on account of costs.
• Court of Appeal (Civil Division): On 3 April 2001, Sedley LJ directed that the vendors’ permission application be listed with any substantive appeal. Lord Justice Parker subsequently varied that order by separating the permission application. The application was granted: [2001] EWCA Civ 589.