Whiting v Halverson & Ors

On a renewed application for permission to bring a second appeal, permission should be granted only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the court to hear it. An erroneous basis for the first-instance decision may provide such a compelling reason, particularly where the lower appellate court reached the same result for different reasons. The court need not determine the merits of the proposed grounds at the permission stage.

The applicant challenged the termination of his membership of Wallsend Rotary Club, seeking declarations and injunctive relief. A district judge stayed the proceedings under section 9 of the Arbitration Act 1996. His Honour Judge Behrens held that the district judge had relied on the wrong constitutional provision but upheld the stay on the basis that the club rules required the member to appeal or arbitrate. The applicant renewed his application for permission to bring a second appeal under CPR Part 52.3. The central issue was whether the proposed appeal met the second-appeal threshold.

1. Permission granted. The application concerned a second appeal, so CPR Part 52.3 required an important point of principle or practice, or some other compelling reason for the Court of Appeal to hear the matter.
2. The proposed appeal raised arguable questions about whether Article XI, section 6 of the club constitution provided the only methods by which termination could be challenged, and whether the arbitration agreement had been rescinded by the parties’ conduct, including the exchange of letters in December 2001 and January 2002.
3. The court would not ordinarily grant permission merely because arguable points existed. This case was different because the district judge had reached the stay decision on an erroneous basis, as Judge Behrens had found. That distinguished it from a case in which both lower courts had rejected the applicant for the same reasons.
4. The Convention ground had properly been abandoned. The court therefore granted permission to appeal, with costs to be costs in the appeal.

• Court of Appeal (Civil Division): On the renewed application, permission to bring a second appeal was granted. Tuckey J had previously refused permission on the papers on 3 September 2002.
• Newcastle upon Tyne County Court: His Honour Judge Behrens held that the district judge had relied on the wrong constitutional article but upheld the stay on the basis that Article XI, section 6 required the member to appeal or arbitrate. Permission to appeal from the district judge had been granted on one ground.
• District judge: The applicant’s proceedings were stayed under section 9 of the Arbitration Act 1996.