Bulled v Khayat & Anor

The Court of Appeal has no jurisdiction to hear an application for permission to appeal from a lower appeal court which has itself refused permission to appeal. This applies even where the applicant seeks an oral hearing. Applications which plainly fall outside the court’s jurisdiction should not be listed for an oral hearing. Any doubt should be referred on paper to a supervising Lord Justice. Orders refusing permission to appeal should state that result clearly and should not add meaningless wording suggesting that the hearing was also treated as the appeal.

The claimant brought professional negligence proceedings against his former criminal counsel and solicitors. A Master struck out the action as an abuse of process and gave summary judgment for the defendants. Garland J refused permission to appeal on paper. Wright J reconsidered the matter in court and reached the same conclusion, but the sealed order stated that permission to appeal was refused and that the hearing was treated as the hearing of the appeal.

The claimant then sought permission to appeal to the Court of Appeal. The central issue was whether the wording of Wright J’s order gave this court jurisdiction to entertain that application.

1. Application refused for want of jurisdiction. Wright J had refused permission to appeal. The additional wording in the sealed order did not convert the hearing into an appeal or confer jurisdiction on the Court of Appeal.
2. Following the guidance in Jolly v Jay [2002] EWCA Civ 277, the Access to Justice Act 1999 and Part 52 of the Civil Procedure Rules 1998 made clear that the Court of Appeal could not hear an application for permission to appeal against a decision of a lower appeal court which had itself refused permission. The same limitation applied to any other appeal tribunal, including the House of Lords.
3. The Civil Appeals Office should not list an application for an oral hearing where it is manifest that the court lacks jurisdiction. A case of genuine doubt should be referred on paper to a supervising Lord Justice. If the supervising Lord Justice confirms the absence of jurisdiction, the matter should end there.
4. The court expressed concern about the drafting of orders in the High Court and County Court when acting as an appeal court. An order should simply state that permission to appeal is refused. The phrase stating that the hearing is treated as the hearing of the appeal is meaningless in that context and may create avoidable uncertainty.
5. The judgment gave guidance on matters of general application. It was therefore not caught by paragraph 6.1 of the practice direction on citation of authorities.

• High Court of Justice, Queen’s Bench Division: Master Ungley struck out the professional negligence action as an abuse of process and gave summary judgment for the defendants.
• High Court of Justice, Queen’s Bench Division: Garland J refused permission to appeal on paper. Wright J reconsidered the matter and reached the same conclusion.
• Court of Appeal (Civil Division): The court held that it had no jurisdiction to entertain the claimant’s application because permission to appeal had been refused below.