Portman Building Society v Yarworth & Anor

On a second appeal, permission should be granted only where the proposed appeal raises a point of principle or practice, or where some other compelling reason requires consideration by the Court of Appeal. A litigant cannot ordinarily reopen, at the warrant-of-possession stage, issues determined when the defence was struck out and the resulting possession order was not appealed. Repeated reconsideration of the same matters strengthens the need for finality. Sympathy for the loss of a family home does not displace the permission test where the proposed appeal has no realistic prospect of success and no compelling reason supports it.

The applicant, Martin Yarworth, sought permission for a further appeal concerning possession of Underhill Farm. The Portman Building Society had obtained a possession order after proceedings arising from arrears under a purported legal charge. The applicant disputed signing the charge and later advanced alternative allegations of undue influence and inadequate legal advice.

His amended defence was struck out by a district judge in 1995. His appeal to a circuit judge was dismissed and a possession order was made. Subsequent applications to stay or suspend the warrant were unsuccessful, including an application dismissed by a district judge on 9 March 2000 and an appeal dismissed by a deputy circuit judge on 13 April 2000. The central issue was whether this further appeal satisfied the stricter test applicable to a second appeal.

1. Application dismissed. The application was for permission to bring a further appeal after an unsuccessful appeal from the district judge to the circuit judge. Under paragraph 2.19.1 of the Practice Direction for the Court of Appeal (Civil Division), permission could be granted only if the case raised a point of principle or practice, or if there was another compelling reason for consideration by the Court of Appeal.
2. The applicant could not use the later application to suspend the warrant to reopen the underlying challenge to the Portman’s claim. His defence had been struck out six years earlier, the appeal against that decision had been dismissed, and no further appeal had been brought. The issue had also been considered in separate proceedings and reconsidered by Judge McNaught in 1999. In those circumstances, it was impossible at that stage to challenge the claim on the basis that the original defence should have succeeded.
3. The proposed appeal raised no point of principle or practice. The applicant had shown no prospect whatever of succeeding against the deputy circuit judge’s decision. Given the history of the matter and the absence of any defence to the Portman’s claim, refusal of permission was inevitable.
4. The applicant’s distress at losing a long-held family home was acknowledged, but sympathy could not satisfy the second-appeal test. No other compelling reason justified a hearing. Any stay still in operation was to be lifted.

• Court of Appeal (Civil Division): Lord Justice Peter Gibson dismissed the application for permission for a further appeal and directed that any stay still in operation be lifted.
• Gloucester County Court: A district judge dismissed the application to suspend the warrant for possession on 9 March 2000. A deputy circuit judge dismissed the appeal on 13 April 2000 and refused permission to appeal.
• Earlier proceedings: The applicant’s amended defence was struck out in 1995. His appeal to the circuit judge was dismissed and a possession order was made. No further appeal was brought from that decision.