Scottish Widows Fund & Life Assurance Society v Weller & Anor

For a second-tier appeal, permission requires either an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the case. The proposed appeal must also have a real prospect of success. A party who has consented to an order, and subsequently proceeded on the basis that it was effective, cannot ordinarily reopen its validity through later applications. Speculative prospects of recovering money from a third party, or a proposed counterclaim against the claimant, do not by themselves justify challenging or staying a possession order.

Scottish Widows obtained possession-related orders concerning Mr and Mrs Weller’s property after Mr Weller failed to meet liabilities secured by a legal charge. The defendants entered into a consent order providing for immediate possession if leave to appeal was refused in related litigation. Subsequent applications under the Administration of Justice Acts and applications for permission to appeal were unsuccessful.

Mr Weller sought permission for a second-tier appeal against Her Honour Judge Faber’s order of 7 December 2001, together with a stay of execution. The central issues were whether the statutory permission criteria were met, whether the consent and possession orders could be challenged, and whether possible claims against Lloyds or Scottish Widows justified a stay.

Lord Justice Jonathan Parker refused permission to appeal and refused a stay of the possession order. The application was dismissed with costs summarily assessed at £1,795.40, including VAT.

1. Second-tier appeal. Under Civil Procedure Rules 1998, r 52.13(2), permission could be granted only if the proposed appeal raised an important point of principle or practice, or there was some other compelling reason for the Court of Appeal to hear it. Neither criterion was satisfied. The proposed appeal also had no real prospect of success.
2. Consent order. Mr Weller’s challenge to the consent order of 15 May 2000 had no substance. Counsel had authority, or at least ostensible authority, to consent on his behalf. No application had been made to set the order aside, and subsequent applications and the possession order made pursuant to it proceeded on the basis that it was effective.
3. Possible claims against Lloyds. The pending Lloyds v Jaffray litigation did not provide a basis for challenging the order or staying execution. Any prospect of Mr Weller receiving payment from Lloyds was remote and highly speculative, and was immaterial to the appeal against Judge Faber’s order.
4. Counterclaim. A proposed substantial counterclaim against Scottish Widows did not affect the validity of the consent order or the possession order made pursuant to it. The analogy relied on from Re Bayoil did not assist on the facts or issues of this application.

• Court of Appeal (Civil Division): Application for permission to bring a second-tier appeal and application for a stay refused; application dismissed with costs.
• Central London County Court: Her Honour Judge Faber dismissed Mr Weller’s appeal against His Honour Judge Medawar QC’s order of 26 October 2001.
• Central London County Court: Judge Medawar dismissed the renewed application for permission to appeal out of time. Earlier, Judge Ryland had refused permission on paper on 6 August 2001.