Markos v Goodfellow & Ors

A court must determine the true substance of an appellate order. A purported refusal of permission which decides that an appeal should succeed in part is, in substance, a grant of permission and cannot prevent a further appeal.

The slip rule in Civil Procedure Rules r 40.12 is confined to an accidental slip or omission. It cannot correct a deliberate substantive judgment or add relief which the trial judge intentionally did not grant. Where important practice issues arise, a second appeal may be permitted and the matter should ordinarily be determined at the appropriate appellate level.

The appellant brought a neighbour dispute in the County Court concerning the boundary between two properties, alleged trespass and consequential relief. Judge Thompson found a small encroachment but dismissed the claim as de minimis.

Mitting J refused permission to appeal, while stating that trespass was actionable and that nominal damages should have been awarded. He relied on the respondents’ undertaking to seek an amendment of the County Court order under the slip rule. The Deputy Master then refused permission to appeal from Mitting J’s decision on the basis that no further appeal lay.

The central issues were whether Mitting J’s order was substantively a refusal of permission, whether the slip rule could make the proposed amendment, and what appellate course should follow.

Appeal allowed. Pill LJ gave the judgment, with which Waller LJ agreed.

1. Mitting J’s order was, in substance, a grant of permission to appeal coupled with an attempt to allow that appeal in part. His conclusion that the County Court’s dismissal was wrong, and that a declaration and nominal damages should instead follow, was incompatible with a refusal of permission. The Deputy Master’s decision was therefore set aside.

2. The proposed use of Civil Procedure Rules r 40.12 was invalid. The rule corrects only an accidental slip or omission. It does not permit a substantive alteration of a judgment which the trial judge deliberately intended, nor may an appellate court use it to substitute an order contrary to that intention. The court applied the approach in Secretary of State for Trade and Industry v Rogers [1996] 4 All ER 854. Judge Thompson had deliberately dismissed the claim; adding nominal damages was not a slip correction.

3. The procedure was also defective because it required one party to procure an unspecified alteration to a County Court order, without adequate particulars in the High Court order. The court accepted that Mitting J had correctly identified the error in treating the established encroachment as a basis for dismissing the claim. A trespass, however small, was actionable and entitled the claimant at least to nominal damages.

4. Important practice points justified a second appeal under Civil Procedure Rules r 52.13(2). The court set aside Mitting J’s order and remitted the application for permission to appeal to a different High Court judge, with permission to be given on the consequences of the boundary findings and the remaining grounds reconsidered on notice. The appellant received the costs of these appeals, subject to assessment; payment was stayed pending further order.

• Court of Appeal (Civil Division): Allowed the appeal from the Deputy Master and the consequential appeal from Mitting J. It set aside Mitting J’s order and remitted the permission application to a different High Court judge.

• High Court, Queen’s Bench Division: Mitting J purported to refuse permission to appeal from the County Court, while holding that nominal damages should have been awarded and relying on an undertaking to amend the County Court order under Civil Procedure Rules r 40.12.

• County Court: Judge Thompson declared the boundary and dismissed the claimant’s trespass claim despite finding a limited encroachment.

• Deputy Master: Refused permission to appeal from Mitting J’s order on the basis that no further appeal lay.