D S Heath & Co (A Firm) v Layton

On an application for permission to bring a second appeal, the court must consider the length of the delay, the explanation for it, and the prospects of success. Procedural confusion may explain part of the delay, but does not justify a further unexplained period. Under Access to Justice Act 1999, s 55, permission requires an important point of principle or practice or another compelling reason. An appeal concerning execution or enforcement of a valid judgment cannot reopen the merits of the original judgment. A judge is not obliged to permit representation by a McKenzie Friend.

The respondent obtained judgment against the applicant in Wigan County Court for work carried out at her property, subject to a limited award on her counterclaim. Her attempted appeal against the original judgment was struck out. The court later ordered enforcement by weekly instalments, and a subsequent appeal against that order was dismissed. The applicant sought an extension of time and permission to appeal, but her grounds challenged the original judgment rather than the order under appeal. The central issues were whether time should be extended and whether the proposed second appeal met the statutory threshold.

Application refused. Lord Justice Dyson, sitting in a single judgment, rejected the application for an extension of time and permission to appeal.

1. The applicant’s procedural difficulties explained the period up to 12 March 2001. They did not explain the further delay of more than four months before notice of appeal was served on 25 July 2001. The court treated the delay as significant and materially unexplained, while taking the applicant’s status as a litigant in person into account.
2. In deciding whether to extend time, the relevant considerations included the length of the delay, the explanation for it, and the prospects of the proposed appeal succeeding.
3. The proposed grounds challenged the original judgment of 29 February 2000 rather than the order of 7 December 2000. Proceedings concerning the later instalment and enforcement orders concerned only execution of a valid judgment and could not be used to revisit its merits.
4. Because the matter was a second appeal, Access to Justice Act 1999, s 55 required an important point of principle or practice, or another compelling reason, before the Court of Appeal could hear it. The applicant’s grievances did not satisfy that stringent threshold.
5. On the information available, there was no obligation on the district judge to permit the litigant in person to be represented by a McKenzie Friend. The alleged illegibility of documents did not impeach the decision, particularly since the district judge had not read them.

The application was dismissed. The order was: application refused.

1. Court of Appeal (Civil Division) — Permission to appeal and an extension of time were refused.
2. Wigan County Court — The applicant’s appeal against the enforcement instalment order was dismissed on 7 December 2000.
3. Wigan County Court — An earlier appeal against the original judgment was struck out on 23 March 2000. A later High Court challenge was held to be outside that court’s jurisdiction; the judgment records that second-tier appeals fell within the Court of Appeal under Article 5 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000.