Gregory & Anor v Turner & Anor

A power of attorney is a form of agency. It does not transfer a litigant’s personal statutory rights of audience or to conduct litigation to the attorney. Those rights remain subject to the statutory scheme and may be exercised by an unqualified representative only if the court grants permission in the particular proceedings.

The Court of Appeal’s residual power to reopen concluded proceedings exists only to avoid real injustice in exceptional circumstances. A later change in costs practice, or dissatisfaction with an earlier decision, does not meet that demanding threshold. A refusal by a circuit judge of permission to appeal cannot be challenged by a further appeal; judicial review is available only in the very rare case of a narrow jurisdictional error or a fundamental denial of a fair hearing.

The Gregorys brought a small-claims action against their neighbours for trespass arising from building works. District Judge Exton awarded £100 nominal damages. Judge O’Malley later refused permission to appeal and ordered the Gregorys to pay costs. Sedley LJ refused permission to appeal against that costs order.

Mr Morris, acting under an enduring power of attorney granted by Mrs Gregory, sought to reopen the costs decision and to challenge the refusal of permission to appeal on the merits. He also sought permission to appeal against Burton J’s refusal of permission to apply for judicial review of the local authority’s decision not to take planning-enforcement action: [2002] EWHC 1712 (Admin).

The joined applications raised the Court’s residual reopening jurisdiction, the narrow availability of judicial review of a circuit judge’s permission decision, and whether a power of attorney entitled Mr Morris to conduct litigation or appear as an advocate.

1. All applications were dismissed. This was a joint judgment of Brooke, Sedley and Carnwath LJJ.

2. The Court refused to reopen Sedley LJ’s refusal of permission to appeal on costs. The exceptional residual jurisdiction described in Taylor v Lawrence, [2002] EWCA Civ 90, exists to avoid real injustice in exceptional circumstances. The subsequent costs guidance following Jolly v Jay, [2002] EWCA Civ 277, did not undermine the earlier decision or create such circumstances. The Court also held that, on a small-claims appeal, the applicable costs regime permitted summary assessment and did not permit a detailed assessment.

3. Section 54(4) of the Access to Justice Act 1999 barred a further appeal against Judge O’Malley’s refusal of permission to appeal. Taylor v Lawrence could not circumvent that statutory finality. Although the Court considered the possible judicial-review route left open by R (Sivasubramaniam) v Wandsworth County Court, [2002] EWCA Civ 1738, it held that any challenge would fail. The circuit judge had jurisdiction to determine the application, and his errors, if any, did not amount to a complete disregard of duty or a fundamental denial of a fair hearing.

4. Sections 27 and 28 of the Courts and Legal Services Act 1990 make rights of audience and rights to conduct litigation personal rights of a party. An enduring power of attorney is no more than agency. Neither the Enduring Powers of Attorney Act 1985 nor a general agency authorisation placed Mr Morris within the statutory exceptions. He could appear or act only if the court exercised its discretion to permit it.

5. Permission to appeal against Burton J’s planning-enforcement decision was also refused. The local authority was entitled to regard the slight encroachment as immaterial to planning amenity and enforcement as inexpedient; enforcement was in any event time-barred.

• Court of Appeal (Civil Division): The Court dismissed the applications and held that Mr Morris had no right to conduct litigation or appear without the court’s permission: [2003] EWCA Civ 183.
• Court of Appeal (Civil Division): Sedley LJ refused permission to appeal against Judge O’Malley’s costs order: [2001] EWCA Civ 1952.
• High Court, Administrative Court: Burton J refused permission to apply for judicial review of the council’s decision not to take enforcement action: [2002] EWHC 1712 (Admin). The present Court refused permission to appeal.
• Bristol County Court: Judge O’Malley refused permission to appeal from the district judge’s decision and summarily assessed costs against the Gregorys.
• Weston-super-Mare County Court: District Judge Exton awarded the Gregorys £100 nominal damages for trespass following a small-claims trial.