Yorke v Katra

Appellate jurisdiction depends on the substance of an application, not the description given to it in a county court order. A circuit judge asked, in substance, to consider permission to appeal a different circuit judge’s order had no jurisdiction to treat the matter as an appeal from district judge orders. The Court of Appeal likewise had no jurisdiction to hear permission to appeal that circuit judge’s decision. The available routes were an application to extend time to set aside the order or an application to the High Court for an extension of time and permission to appeal. It was strongly arguable that justice did not warrant striking out a litigant in person’s defence where deleted passages in expert instructions did not bear directly on the real issue.

The defendant sought permission to appeal and an extension of time following a building dispute allocated to the small claims track. His defence was struck out after he signed a joint expert instruction but deleted two sentences. Applications to set aside the order and to appeal were unsuccessful. A later application was dismissed as procedurally defective, and Judge Harris treated a subsequent notice as an appeal against that later order rather than the district judges’ decisions. Judge Harris concluded that he had no jurisdiction. The central issues were whether that characterisation was correct and whether the challenge to Judge Hull’s order could be determined through the High Court.

The court held that Judge Harris was right to conclude that he had no jurisdiction to entertain what was, in substance, an application for permission to appeal against Judge Hull QC’s order. The description of the county court order as dismissing an appeal did not alter the true nature of the earlier hearing or the application before Judge Harris.

1. The Court of Appeal also had no jurisdiction to hear an application for permission to appeal against Judge Harris’s decision.
2. The defendant could challenge Judge Hull’s order by applying in the county court for an extension of time to set it aside under CPR 3.3(5), or by applying for an extension of time and permission to appeal to the High Court. The judge reconstituted himself as a High Court judge to determine the latter application.
3. It was strongly arguable that the district judge should have accepted the joint expert instruction in the form signed by the defendant. The deleted sentences did not bear directly on the central issue, namely the quality of the workmanship, while the remaining terms addressed that issue. The defendant was a litigant in person, had no legal advice, and felt strongly about the deleted passages. In those circumstances, striking out the defence appeared to deprive him of a merits determination for what was arguably a technical reason.
4. The court was minded, subject to the respondent’s agreement, to treat the matter as an appeal from Judge Hull and direct that the instruction be sent to the expert in the signed form. The application was allowed and there was no order for costs.

• Oxford County Court: The defendant’s defence was struck out and judgment entered after he altered the terms of a joint expert instruction. His subsequent applications were refused or treated as procedurally defective. Judge Harris concluded that he lacked jurisdiction to hear the matter as presented.
• Court of Appeal (Civil Division): Under [2003] EWCA Civ 42, the court upheld Judge Harris’s jurisdictional conclusion, reconstituted itself as a High Court judge to consider the proper challenge to Judge Hull’s order, allowed the application, and made no order for costs.