Plymouth City Council v Hoskin

A refusal of permission to appeal is not itself appealable where section 54(4) of the Access to Justice Act 1999 applies. The court must identify whether a circuit judge refused permission, determined an appeal after granting permission, or exercised a distinct original statutory jurisdiction.

A second appeal requires an important point of principle or practice, or another compelling reason. The availability of an effective application to the county court to suspend or postpone possession will ordinarily mean that no compelling reason exists. Judges should state clearly which jurisdiction they are exercising and the nature of the order made.

The council obtained a possession order against Mr Hoskin from a district judge. On an application for permission to appeal, HHJ Tyzack made an order expressed as dismissing the application for leave to appeal, extended the date for possession, and varied an injunction.

Mr Hoskin sought permission to appeal to the Court of Appeal. He contended that the circuit judge had in substance granted permission and dismissed an appeal, or had made appealable decisions when postponing possession and varying the injunction. The central issues were the correct characterisation of those decisions, the availability of a second appeal, and whether a compelling reason justified intervention.

1. Application refused unanimously. Pill LJ gave the leading judgment. Chadwick LJ agreed, and Clarke LJ agreed with both judgments.

2. HHJ Tyzack had refused permission to appeal against the possession order. Although his language could have been clearer, the order drawn up and the substance of his decision showed that he had determined an application for permission, rather than granted permission and dismissed an appeal. Section 54(4) of the Access to Justice Act 1999 therefore barred a further appeal from that refusal.

3. Even if the circuit judge had heard an appeal, a further appeal would have required permission as a second appeal. It raised no important point of principle or practice. There was also no compelling reason for the Court of Appeal to intervene because the county court retained jurisdiction to consider a fresh application to stay or suspend execution, postpone possession, and vary the injunction.

4. In postponing possession after refusing permission, the circuit judge was in substance exercising original statutory jurisdiction, rather than appellate jurisdiction. Any appeal from that original exercise lay to a High Court judge, not to the Court of Appeal. In any event, treating the application as one for a first appeal, Pill LJ would have refused permission because there was no real prospect of success in challenging that discretionary decision while an effective county court remedy remained available.

5. Clarke LJ added that a fresh application to a district judge would permit consideration of all relevant current circumstances, including medical evidence, subsequent conduct, and the consequences for rehousing. The court emphasised that judges hearing permission applications listed with an appeal to follow should identify clearly the jurisdiction exercised and whether permission has been refused or granted.

• Court of Appeal (Civil Division): application refused, [2002] EWCA Civ 684.

• Plymouth County Court (HHJ Tyzack): refused permission to appeal against the possession order; postponed the date for possession and varied an injunction.

• Plymouth County Court (District Judge Child): made a possession order in favour of the council and granted an injunction.