Olatawura v Abiloye

On a renewed application for permission to bring a second appeal, permission should be granted where the proposed appeal raises an important point of principle or practice, or another compelling reason for the Court of Appeal to hear it. That threshold may be met where the lower courts may have imposed a payment into court without a clear procedural foundation. It may also be met where a substantial fair-hearing complaint cannot be assessed because the relevant transcript is unavailable. Granting permission may necessarily defer the underlying trial.

The claimant sought permission for a second appeal from the judgment of His Honour Judge Cowell in the Central London County Court, which had dismissed his appeal from District Judge Langley’s decision on 11 December 2001. The order required him to pay £5,000 into court, failing which his action would be dismissed and the trial vacated. The claimant challenged the district judge’s jurisdiction to make that order and alleged that he had not received a fair hearing. The relevant transcript had not been supplied. The central issues were whether the proposed appeal met the second-appeal permission test and whether the unresolved procedural and fair-hearing questions justified appellate consideration.

Permission to appeal granted. Lord Justice Pill, giving the principal judgment, held that the application satisfied the second-appeal threshold because it raised a fundamental question about the construction of the Civil Procedure Rules and there was also a serious unresolved fair-hearing issue.

1. Payment into court. The district judge described the order as security for costs, although no application for security for costs had been made. The provisions relied on were not the ordinary CPR provisions for security for costs. Since there was no money claim against the claimant, it was difficult to see how the payment could be justified under Part 24 as a condition of proceeding with the claim while the defendant’s summary-judgment application was being considered. Part 3.1(2)(m) appeared the most likely source of jurisdiction, but it was arguable both that the rule did not cover the circumstances and that it did. The substantive jurisdiction question was therefore left for the appeal itself.
2. Fair hearing. The claimant alleged that the reasons later relied on by the district judge had not been canvassed at the hearing. The weight of that complaint could not be assessed without the approved transcript of the ruling. The continuing absence of that transcript was a matter of concern and supported permission on the fair-hearing ground.
3. Directions and consequence. The claimant was to provide the transcript and any note of the district judge’s judgment to the Court and the respondent, and to consider whether the grounds required amendment. Lord Justice Longmore agreed with the grant of permission and hoped that the corrected transcript would be released promptly. The application for expedition was also allowed, with listing after receipt of the transcript. The county-court trial would consequently be deferred.

1. Court of Appeal (Civil Division) — On 14 March 2002, permission to bring a second appeal was granted and expedition was allowed: [2002] EWCA Civ 364.
2. Central London County Court — His Honour Judge Cowell dismissed the claimant’s appeal from District Judge Langley’s decision on 11 December 2001, in a judgment dated 18 January 2002.
3. County court — District Judge Langley required £5,000 to be paid into court, failing which the action would be dismissed and the trial vacated.