Gregory & Anor v Turner & Anor

The Court of Appeal dismissed all applications by the Gregorys arising from protracted neighbour litigation. The court (i) refused to reopen a prior costs order, concluding that recent practice changes (for example in Jolly v Jay) did not supply the "exceptional circumstances" required by Taylor v Lawrence to reopen final appellate decisions on costs; (ii) held that Access to Justice Act 1999 s 54(4) bars further appeal against the circuit judge's refusal of permission to appeal on the merits and that judicial review would only be available in very rare cases of true jurisdictional error or denial of a fair hearing (see Sivasubramaniam); and (iii) held that an enduring power of attorney under the Enduring Powers of Attorney Act 1985 does not by itself confer statutory rights of audience or a statutory right to conduct litigation under the Courts and Legal Services Act 1990 (sections 27 and 28) and that the attorney could act in court only with the court's discretion to permit representation. The court also refused permission to appeal the Administrative Court's refusal to require planning enforcement, concluding that the planning authority's decision not to serve an enforcement notice was not unlawful.

Background and parties. Mother and daughter (the Gregorys) sued neighbours Mr and Mrs Turner for trespass, loss of amenity and related relief arising from building works (garage and garden wall). The county court (District Judge Exton) tried the case in the small claims track in September 2000, awarding only £100 for trespass and dividing experts' fees; the Gregorys sought permission to appeal to a circuit judge (Judge O'Malley), who refused permission and ordered costs; Sedley LJ refused permission to appeal the costs order; Burton J refused permission to seek judicial review of the planning authority's decision not to serve an enforcement notice.

Nature of the applications. The Court of Appeal heard three linked applications by the Gregorys (by Mr Morris under an enduring power of attorney): (i) permission to appeal Burton J's refusal to allow judicial review of the council's enforcement decision; (ii) permission to reopen Sedley LJ's refusal to allow appeal against the circuit judge's costs order; (iii) permission to challenge the circuit judge's refusal of permission to appeal the merits of the small-claims trial. The court also considered whether the enduring power of attorney authorised Mr Morris to represent the Gregorys and conduct litigation under the Courts and Legal Services Act 1990.

Issues framed. The court formulated four issues: (i) whether Sedley LJ's costs decision could be reopened; (ii) whether any remedy existed against the circuit judge's refusal of permission to appeal on the merits; (iii) whether the enduring power of attorney conferred rights to conduct litigation or rights of audience; and (iv) whether there were arguable grounds for judicial review of the planning authority's decision not to take enforcement action.

Reasoning and conclusions.

• Costs issue: The court applied the exceptional-reopening test from Taylor v Lawrence and the refined costs approach following Jolly v Jay. It concluded there were no exceptional circumstances to reopen Sedley LJ's exercise of discretion concerning a costs summary assessment, and noted additional practical and procedural reasons (small claims costs limitations and offsetting of sums) supporting refusal.
• Merits issue: Access to Justice Act 1999 s 54(4) precludes further appeal against the circuit judge's refusal of permission to appeal. Judicial review is only available for very rare cases involving narrow pre-Anisminic jurisdictional error or denial of a fair hearing (Sivasubramaniam); the court concluded no such exceptional jurisdictional defect was shown.
• Power of attorney issue: The court analysed the Enduring Powers of Attorney Act 1985 and the Courts and Legal Services Act 1990. It concluded that the personal right of a litigant to appear in person cannot be delegated by power of attorney and that sections 27 and 28 of the 1990 Act do not confer the party's personal right on an attorney; therefore Mr Morris had no statutory right of audience or to conduct litigation and could represent only with the court's permission.
• Enforcement issue: The court concluded Burton J was right to refuse judicial review of the planning committee's decision not to issue an enforcement notice, the committee having reasonably treated the encroachment as trivial in planning terms and not expedient to enforce.

Procedural and contextual observations. The court was critical of aspects of the small-claims case management and the absence of oral evidence and cross-examination, but emphasised that such procedural shortcomings did not amount to the exceptional jurisdictional errors needed to reopen concluded appeals.

All applications were dismissed. The court held that (1) there were no exceptional circumstances to reopen Sedley LJ’s costs decision; (2) further appellate review of Judge O’Malley’s refusal of permission to appeal on the merits was barred by statute and, absent a rare jurisdictional or procedural defect, judicial review would not lie; (3) an enduring power of attorney under the 1985 Act does not by itself confer statutory rights of audience or rights to conduct litigation under the Courts and Legal Services Act 1990, so Mr Morris had no automatic right to conduct or advocate litigation on the Gregorys’ behalf; and (4) the Administrative Court’s refusal to quash the council’s non-enforcement decision was unobjectionable.

The action was tried before District Judge Exton in Weston-super-Mare County Court (trial 18 September 2000). Judge O'Malley (Bristol County Court) on 20 February 2001 refused permission to appeal and made an order for costs. Sedley LJ refused permission to appeal the costs order on 7 December 2001 ([2001] EWCA Civ 1952). Burton J (Administrative Court) refused permission for judicial review of the council's enforcement decision ([2002] EWHC 1712 (Admin)). The present decision is [2003] EWCA Civ 183.