Boyd & Hutchinson (A Firm) v Foenander

Permission to appeal may be granted where the proposed appeal is reasonably arguable, even though the judge considers that it is unlikely to succeed. The objective construction of a compromise depends on the language of the agreement read in its surrounding circumstances. The basis on which a settlement sum was calculated does not necessarily determine whether the compromise was global. Uncommunicated subjective intentions have no legal effect. An appeal conducted by way of review is not ordinarily a rehearing, and further evidence requires exceptional circumstances. There is no appeal from an oral decision of an appeal court granting or refusing permission to appeal.

The applicant sought permission to appeal decisions arising from proceedings brought by his former solicitors. A compromise had settled enforcement proceedings under a charging order, but the solicitors later sought payment of separately assessed costs from the original invoice action.

The Master made a further charging order absolute. Buckley J dismissed the applicant’s appeal on the issue whether the compromise was global, and limited permission to appeal to that issue. The applicant also sought permission to challenge Buckley J’s refusal of permission on other grounds. The central questions were whether the compromise arguably extended to the original action costs and whether this court had jurisdiction to grant further permission in relation to the other grounds.

1. Permission on the compromise issue. Permission to appeal was granted because the question whether the compromise was global was at least arguable. The agreement had to be construed objectively, principally by reference to the settlement letter and its context. The fact that the payment had been calculated by reference to the immediate charging-order proceedings was not necessarily decisive. The reference to discharging all liabilities, including costs and interest in the proceedings, could arguably extend to the proceedings at large.
2. Evidence and intention. The appeal to Buckley J was by way of review rather than rehearing. Further evidence, including proposed witness summonses, would ordinarily require exceptional and unexpected circumstances. In any event, the issue turned on the objective construction of the documents. Uncommunicated hopes, beliefs or intentions could not affect the agreement.
3. Other grounds. Permission was refused in relation to the challenge to the charging order being made final. Under Civil Procedure Rules 1998 CPR 52 PD 4.8, section 54(4) of the Access to Justice Act 1999, and CPR 52.3(3) and (4), as applied in Jolly, there was no appeal from an oral decision of an appeal court granting or refusing permission to appeal.
4. The application was therefore granted only in respect of the extent of the compromise. The proposed appeal could be heard by two Lords Justices, with an estimate of two hours. A transcript was directed to be supplied to the applicant at public expense.

• Court of Appeal (Civil Division): Permission to appeal granted on the extent of the compromise; permission refused on the remaining grounds.
• High Court, Queen’s Bench Division: Buckley J dismissed the applicant’s appeal from the Master’s decision and limited permission to appeal to the compromise issue.
• Lambeth County Court: Master Turner made the charging order absolute.