Southall Properties Ltd v Marya

An appellate court may reconsider an application afresh, but it should not interfere with a lower court’s exercise of judicial discretion where no new ground or material reason for reopening the matter is shown. Repeated attempts to relitigate an issue do not themselves justify permission to appeal. Where the proposed appeal has no realistic prospect of establishing an error in the exercise of discretion, the application for permission should be refused.

Mr Marya applied for permission to appeal from an order of Blackburne J in the Chancery Division dated 30 July 2001. Blackburne J had dismissed his application for permission to apply for rescission of a bankruptcy order made by Kingston-on-Thames County Court on 18 October 1999.

Mr Marya argued that the bankruptcy order should not have been made because a counterclaim was pending. The county court had suspended the bankruptcy order pending a hearing, but the counterclaim subsequently failed. Blackburne J concluded that no new ground had been raised to justify reopening the matter. The central issue was whether that exercise of discretion disclosed any ground warranting appellate intervention.

1. Application refused. Lord Justice Robert Walker considered the matter afresh and reviewed Blackburne J’s judgment.
2. Blackburne J had carefully considered whether Mr Marya had identified any new matter capable of providing a fresh reason for another attempt to challenge the bankruptcy order. He had concluded that no such new ground existed.
3. The Court of Appeal found no basis for interfering with that exercise of judicial discretion. The fact that the bankruptcy proceedings had already been considered by different courts on numerous occasions reinforced the conclusion that the application was another attempt to revisit and relitigate the same issue, although repetition alone was not treated as the legal test.
4. The proposed appeal was hopeless because it disclosed no arguable error in the lower court’s approach or exercise of discretion. The application was therefore refused.

• Court of Appeal (Civil Division): On 1 March 2002, Lord Justice Robert Walker refused permission to appeal.
• High Court, Chancery Division: Blackburne J dismissed the application for permission to apply for rescission of the bankruptcy order on 30 July 2001.
• Kingston-on-Thames County Court: A bankruptcy order was made on 18 October 1999. Its effect was suspended pending determination of a counterclaim, which subsequently failed.