Jolly v Jay & Anor

A refusal by an appeal court of permission to appeal cannot itself be appealed. The statutory regime for a second appeal concerns a substantive decision made on appeal, not a refusal of permission.

A respondent who is notified of a permission application is ordinarily informed of the appeal process, not entitled to participate in it. Submissions should be confined to the applicable permission threshold or a material inaccuracy. Costs remain discretionary. In deciding whether to award a respondent’s costs, the court should consider the limited nature of that participation and whether attendance was justified.

The claimant sought rectification of the register under section 82 of the Land Registration Act 1925 in relation to his former matrimonial home. Master Bragge struck out the claim and ordered costs. Neuberger J refused the claimant permission to appeal and, after the respondents attended through counsel at the renewed oral hearing, ordered the claimant to pay their costs.

The claimant purported to pursue a further appeal. The Court of Appeal had no jurisdiction over the refusal of permission, but could consider the costs order. Before the hearing, the claimant withdrew his application and offered to pay the respondents’ standard costs incurred to that point. The court also used the hearing to give guidance on respondents’ participation at the permission stage under CPR Part 52.

1. The application was dismissed on terms. The claimant was to pay the respondents’ costs down to noon on 6 February 2002, and the respondents were to pay the claimant’s costs incurred thereafter.

2. In the court’s joint judgment, the court held that it had no jurisdiction to entertain an appeal from Neuberger J’s refusal of permission to appeal. CPR 52.13 concerns a second appeal from a substantive appellate decision. It does not create an appeal from an appeal court’s refusal of permission. The court followed Riniker v University College London [2001] 1 WLR 13.

3. The refusal of permission did not prevent an appeal against an ancillary costs order made on that occasion. Such an appeal remained available. The court held that an appeal from a circuit judge’s ancillary order at a permission hearing lies to a High Court judge as a first appeal under the Access to Justice Act 1999 (Destination of Appeals) Order 2000.

4. The court explained that service of an appeal notice and a request for reconsideration ordinarily informs a respondent of procedural landmarks. It does not entitle the respondent to take part in the permission process unless the court directs otherwise. A respondent’s submissions should address the permission threshold or a material inaccuracy capable of affecting the grant of permission. Merits submissions should normally await the appeal itself, and written submissions will often suffice.

5. Costs at a permission hearing remain discretionary. A judge should consider whether any costs order is appropriate and, if so, whether it should extend to attendance rather than concise written submissions. Here, once the claimant withdrew and offered standard costs, the respondents could not insist at his expense on an open hearing to seek wider finality or an undertaking barring future claims.

• Court of Appeal (Civil Division): The application was dismissed on terms. The court held that it lacked jurisdiction over the refusal of permission but could consider the ancillary costs order.
• High Court of Justice, Chancery Division: Neuberger J refused permission to appeal on paper and, at a renewed oral hearing, dismissed the application and made a costs order in the respondents’ favour.
• High Court: Master Bragge struck out the claimant’s rectification claim and ordered him to pay the respondents’ costs.