Rayner v Davies

Permission to appeal may be justified where an issue retains residual importance, particularly where first-instance authorities disagree and the courts below have reached different views in the particular case. Those circumstances may satisfy both limbs of the applicable permission threshold. The substantive appeal remains for determination by the full appellate court.

The claimant applied for permission to appeal from a decision of Mr Justice Morison in the Queen's Bench Division. The respondent was absent and unrepresented. The Court of Appeal considered whether the issue retained sufficient residual importance to justify a further appeal, given disagreement between first-instance authorities and differing views in the courts below.

Permission and directions

1. The application for permission to appeal was allowed. Lord Justice Mance considered that the issue's residual importance justified an appeal, having regard to disagreement between first-instance authorities and the different views reached by the first and second courts in this case. He considered that the permission threshold was probably overcome on both limbs. Lord Justice Latham agreed.
2. The appeal was directed to be heard by three Lords Justices, with a time estimate of half a day.
3. The application to adduce further evidence was adjourned to the full court. The respondent was directed to file any further evidence within two months.
4. The order for costs was stayed pending resolution of the appeal. The costs of the permission application were costs in the appeal.

Lord Justice Mance also made an obiter observation that costs should be proportionate when a refined jurisdictional issue can be resolved through limited written and oral argument.

• Court of Appeal (Civil Division): Permission to appeal allowed. The substantive appeal was directed to be heard by three Lords Justices.
• High Court, Queen's Bench Division, Plymouth District Registry: Decision of Mr Justice Morison, from which permission to appeal was sought.