Epping Forest District Council v Mason & Ors

Permission to appeal may be refused where the proposed appeal raises an arguable point but cannot provide the applicants with any practical benefit. The court may also decline to entertain an appeal directed against a matter that was not incorporated into the order under challenge. The Civil Procedure Rules 1998 require proportionate use of judicial resources, including consideration of expense, complexity and the allocation of resources to other cases.

Epping Forest District Council obtained interim injunctions restraining occupation of land by gypsies and later obtained a permanent injunction. Penry-Davey J suspended the permanent injunction for a limited period to allow the defendants time to find alternative accommodation. The defendants did not challenge the injunction in principle, but sought permission to appeal comments that Article 8 rights had not been engaged when the interim injunction was sought. They also sought, out of time, permission to appeal the earlier interim order.

The central issues were whether an appeal could properly be brought against a matter not embodied in the order, and whether permission should be granted where the applicants accepted that they had no right to remain and sought no effective substantive relief.

1. Permission refused. Although the proposition that Article 8 might be engaged was arguable at a high level of abstraction, permission was inappropriate in the circumstances of the case.
2. There was a jurisdictional difficulty in appealing against the judge’s treatment of the 29 January application because the order ultimately made did not expressly dispose of that application or incorporate the relevant ruling. The application for permission to appeal the January order was also substantially out of time.
3. The practical dispute had disappeared. The applicants accepted that they had no right to remain on the site. They did not seek an order permitting continued occupation or damages, and no issue concerning costs was advanced. An appeal could therefore provide them with no useful remedy.
4. The court applied the procedural considerations reflected in the opening paragraph of the Civil Procedure Rules 1998. Those considerations require proportionate deployment of court resources, having regard to expense, the amount and complexity of the issues, and the need to allocate resources to other cases.
5. Permission to appeal was refused. Detailed assessment of the appellants’ publicly funded costs was directed.

• Court of Appeal (Civil Division): Permission to appeal refused from the judgment of Penry-Davey J dated 8 July 2002, [2002] EWHC 1532(QB).