Saxena v Rushforth & Anor

Where an appellate court cannot properly assess an application for permission to appeal because the first-instance judge gave no, or inadequate, reasons, it may adjourn the application and remit the matter to the judge with an invitation to provide additional reasons. The appellate court should not determine permission while the basis and consequences of the order remain unclear. This procedure is particularly appropriate where the order may restrict further applications and may have caused procedural circularity. The court may retain the matter, or release it for an expedited hearing if appropriate.

Dr Saxena sought an extension of time and permission to appeal an order made by Jacob J in the Chancery Division on 18 January 2002. The order rescinded a direction requiring attendance by a representative of the defendants and transferred further proceedings to Manchester, applying a previous restriction on applications made in bankruptcy proceedings.

The Manchester County Court subsequently rejected the claim form and application by reference to Jacob J’s order. Jacob J later refused a further injunction application and confirmed that the 18 January order stood. The central issue was whether the Court of Appeal could determine permission when the first-instance order contained no reasons and its scope was uncertain.

1. The application was adjourned. The court declined to determine the application for an extension of time and permission to appeal until Jacob J had explained the order of 18 January 2002 and the reasons for paragraphs 3 and 4. There was no order for costs.
2. The absence of reasons made it difficult to determine why the order had been made and what followed from it. It was unclear whether Jacob J intended to make a fresh Grepe v Loam order. An order made during the bankruptcy appeared, on its face, not to cover proceedings commenced after Saxena’s discharge.
3. The transfer to Manchester was also unexplained. Although the trust property was there, the proposed defendants were not based there and the transfer was highly inconvenient to Saxena, who lived in London. The interaction between the Chancery order and the Manchester County Court’s refusal to entertain the proceedings created a possible procedural circularity.
4. The court followed the procedure approved by the Master of the Rolls in English v Emery Reimbold & Strick Limited (transcript 30th April 2002). Where an application for permission is based on lack of reasons and appears well founded, the appellate court may adjourn it and remit the matter with an invitation to provide additional reasons. Where adequacy remains doubtful, an oral hearing on notice may be appropriate.
5. The first course was appropriate here. The court recognised that Saxena’s previous conduct had, in the view of the judge dealing with it, justified a restrictive order, but was not prepared to leave the matter unresolved or determine permission while the basis of the order remained in the air.

• Court of Appeal (Civil Division): The application for an extension of time and permission to appeal from Jacob J’s order of 18 January 2002 was adjourned pending further reasons. No order for costs.
• Chancery Division: Jacob J made the order dated 18 January 2002, later confirmed on 17 May 2002. No reasons for the original order were given in the judgment supplied.
• Manchester County Court: On 5 March 2002, District Judge Needham rejected the claim form and application by reference to Jacob J’s order.