London Borough Of Southwark v Calvert, Personal Representatives Of & Anor

Under section 54(4) of the Access to Justice Act, the Court of Appeal has no jurisdiction to entertain an appeal from a refusal of permission to appeal. Although it may theoretically consider an appeal concerning costs, permission for such an appeal would require a very strong merits case or exceptional circumstances. A personal representative’s claim concerning matters arising during the represented person’s lifetime cannot answer possession proceedings. Apparent administrative delay may justify moral consideration by a public authority, but any response must remain within its statutory powers.

The Calvert family held a council tenancy. After the deaths of the original tenant and a later successor, Southwark served notice to quit and brought possession proceedings. Mr Calvert defended and counterclaimed in his personal capacity and as personal representative, alleging breaches of earlier tenancy agreements.

The district judge struck out the defence and counterclaim, refused to set aside that order, and made an order for possession. His Honour Judge Cox refused permission to appeal. Mr Calvert then applied to the Court of Appeal, also challenging the costs order and raising concerns about the council’s handling of earlier right-to-buy applications. The central issue was whether the Court of Appeal had jurisdiction to entertain the application.

1. Disposition. Waller LJ dismissed the application. Ward LJ agreed, making the decision unanimous.
2. Jurisdiction. Section 54(4) of the Access to Justice Act deprived the Court of Appeal of jurisdiction to entertain an appeal from a refusal by a lower court to grant permission to appeal. The procedural route requiring permission to appeal from a district judge to a circuit judge was identified as Part 52.3, with Tanfern v Cameron-Macdonald [2001] WLR 1311 at paragraph 20 cited as an authority explaining that position.
3. Costs. The Court of Appeal theoretically retained jurisdiction to consider an appeal against a costs order. Where the costs order arose from a permission application and permission to appeal had been refused, however, permission to appeal against costs would be granted only in a very strong merits case or exceptional circumstances. Neither existed here.
4. Merits. A claim brought by a personal representative concerning matters occurring while the represented person was alive could not provide an answer to possession proceedings. Mr Calvert’s legal position was therefore extremely weak.
5. Wider circumstances and order. The court recognised the apparent injustice caused by lengthy delays in dealing with the family’s right-to-buy applications. Southwark undertook to provide a written explanation within 21 days and to consider whether an exceptional tenancy or purchase opportunity could be offered, subject to its statutory powers. The application was dismissed on those terms.

1. Court of Appeal (Civil Division): dismissed Mr Calvert’s application for permission to appeal from Judge Cox’s refusal of permission, with the council giving undertakings concerning the earlier delays and possible exceptional relief.
2. Lambeth County Court: the district judge struck out the defence and counterclaim, refused to set aside the order, and made an order for possession. His Honour Judge Cox subsequently refused permission to appeal.