Parker v Hutchings

The destination of an appeal from a County Court decision depends on the statutory conditions in force, including actual allocation to the multi-track where that is required. A judge’s statement that a case is appropriately regarded as multi-track does not itself amount to an allocation order. The Court of Appeal cannot treat an unmade order as having been made merely to give effect to the judge’s apparent intention.

Where the statutory scheme directs an appeal to the High Court, the Court of Appeal has no jurisdiction to entertain an application for permission to appeal against the County Court decision. A refusal by a High Court judge of permission to appeal is likewise not appealable to the Court of Appeal under the applicable statutory restriction.

The applicant sought permission to appeal against orders made by a County Court judge in long-running boundary proceedings. The orders declared the boundary, granted an injunction, awarded damages and costs, and refused permission to appeal.

The proceedings had begun before the commencement of the Civil Procedure Rules’ transitional regime. Although the County Court judge stated after judgment that the case should be considered as a multi-track case, no order had allocated it to that track. The applicant’s application for permission was therefore made to the High Court, where it was refused. The central issue was whether the Court of Appeal nevertheless had jurisdiction to entertain a further application.

1. Application refused. The Court of Appeal had no jurisdiction to grant permission to appeal against the County Court judge’s order.
2. Under Articles 3 and 4 of the Access to Justice Act 1999 (Destination of Appeals Order) 2000, an appeal lay to the Court of Appeal only where the decision was a final decision in a claim actually allocated by the court to the multi-track. Otherwise, the appeal lay to the High Court.
3. The proceedings were subject to the transitional provisions in Part 51 of the Civil Procedure Rules 1998. The County Court judge had power to allocate the case to a track, but had not done so. His observation that the case was appropriately to be considered as multi-track was not an allocation order. The intended route of appeal could not convert that statement into an order that had never been made.
4. The Court of Appeal’s jurisdiction had to be determined by the statutory scheme, regardless of the applicant’s grievance or the arguability of the proposed appeal. Since the case had not been allocated to the multi-track, Article 3 governed the appeal route.
5. Section 54(4) of the Access to Justice Act 1999 precluded an appeal against the High Court judge’s refusal of permission. Clark v Perks [2000] 4 All ER 1 confirmed that position, while recognising that a distinct order made by the High Court judge, such as a costs order, could itself be the subject of an application for permission.
6. Article 6 of the European Convention on Human Rights did not justify construing Articles 3 and 4 differently. The statutory provisions concerned the destination of an appeal and did not prevent access to a court.

The only matter potentially within the Court of Appeal’s jurisdiction was an application concerning the High Court judge’s costs order, but no such application was before the court and it was in any event out of time.

• Court of Appeal (Civil Division): The application for permission to appeal against the County Court order was refused for want of jurisdiction. The court noted that the High Court had already refused permission and that the Court of Appeal could not review that refusal.