James & Anor v Opanubi

An application for permission to bring a second appeal is subject to a demanding threshold. Permission requires an important point of principle or another compelling reason for the appeal to be heard. Where the procedural history and facts are confused, an issue was introduced without proper pleading, and the available hearing time is inadequate, the court may adjourn rather than determine permission prematurely. The adjournment does not decide whether permission will ultimately be granted.

Janet Picton James and Michael Elwyn Wiseman sought permission for a second appeal from an order of Patten J in the Chancery Division. Patten J had held, on appeal from Mr Recorder Doggett, that they had not acquired title by adverse possession. The underlying possession claim had been dismissed by the recorder, who had found that James had a protected tenancy and that Wiseman had a trust-based right to occupy his room. The Court of Appeal had to consider whether the second-appeal permission threshold was satisfied, against a confused procedural and factual background and a limited hearing time.

Application adjourned. The Court of Appeal did not grant or refuse permission to appeal and made no order as to costs.

1. Second appeal threshold. Under Civil Procedure Rules 1998 Part 52.13, permission for a second appeal requires an important point of principle or another compelling reason for the Court of Appeal to hear the appeal. Lord Justice Schiemann was not satisfied that the threshold was absent and was not sure that the provisions were satisfied.
2. Need for further preparation. The case had developed through several judgments and orders. The recorder had raised adverse possession although it had not been properly pleaded. The factual position was confused, including the effect of rent paid to the apparent landlord and the tenants’ subsequent works to the property. The applicants’ litigation friend had no litigation experience, and the case had not been presented in a sufficiently condensed and clear legal form. In those circumstances, the allotted half hour was inadequate for a proper determination.
3. Order. The application was adjourned to the first open date in the following term, with notice to the defendant. The applicants were advised to seek assistance from the Citizens Advice Bureau and to refer to relevant House of Lords authority on limitation.

• Court of Appeal (Civil Division): The application for permission to bring a second appeal was adjourned to the first open date in the next term. No order for costs. Judgment reported at [2002] EWCA Civ 1898.
• High Court, Chancery Division (Patten J): On appeal from Mr Recorder Doggett, held that the applicants had not acquired title by adverse possession.
• Mr Recorder Doggett: Dismissed the possession claim, holding that James had a protected tenancy and Wiseman had a right to occupy his room by virtue of a trust.