Moyse & Anor v Regal Mortgages Ltd

When an appeal court refuses permission to appeal to itself, section 54(4) of the Access to Justice Act 1999 prevents a further appeal to the Court of Appeal. An ancillary stay pending the permission hearing ends when permission is refused. Expressly recording its removal does not create a separately appealable order.

The High Court has no jurisdiction to transfer a non-existent appeal to the Court of Appeal or to suspend enforcement pending it. An application seeking to circumvent the statutory finality of the permission decision must therefore be refused.

Mortgagees obtained a possession order against the applicants, who had paid nothing under their mortgage for ten years and owed more than £200,000. The applicants relied on separate alleged financial claims against companies and regulators as grounds for suspending enforcement.

A district judge declined to stay enforcement. A circuit judge then refused permission to appeal, first on paper and subsequently at an oral hearing, and the interim stay expired. Grigson J later purported to transfer an appeal to the Court of Appeal and suspend possession. Cooke J declared that order a nullity and refused permission to appeal and a further stay.

The applicants sought permission to appeal from Cooke J's order. The central questions were whether any further appeal remained available and whether enforcement of the possession order could be stayed.

1. Application for permission to appeal refused. Brooke LJ held that Cooke J's conclusions were plainly and incontrovertibly correct. There was no prospect that an appeal against his order could succeed and therefore no ground for staying execution of the possession warrant.

2. Section 54(4) of the Access to Justice Act 1999 made the circuit judge's refusal of permission to appeal final. Where an appeal court refuses permission to appeal to itself because the proposed appeal has no real prospect of success and there is no compelling reason to hear it, Parliament has excluded a further appeal. The Court of Appeal could not reopen the possession and stay issues determined below.

3. Orders concerning matters arising within an appeal may sometimes be independently appealable. Examples include decisions about adjournments, extensions of time or costs. The circuit judge's interim stay was different. It was merely ancillary to the permission application and existed only to preserve the position until that application was heard. It expired when permission was refused. The inclusion in the formal order of words removing the stay did not create a right of appeal which the statute otherwise excluded.

4. Grigson J had no jurisdiction to transfer an application for permission to appeal to the Court of Appeal. No appeal was in existence, and the High Court could not create or transfer one. His order suspending possession pending that supposed appeal was consequently ineffective. Cooke J was entitled to declare it a nullity and to restore the legal position following the circuit judge's refusal of permission.

5. Any viable money claim against another person had to proceed independently. Its possible success could not provide a route for reopening the concluded possession proceedings or for continuing enforcement stays through higher courts.

1. Court of Appeal (Civil Division): The application for permission to appeal from Cooke J's order was refused. No stay of the possession warrant was granted.

2. High Court, Cooke J: Declared Grigson J's order a nullity insofar as it concerned the county court appeal. Cooke J also refused permission to appeal and refused a stay pending an application to the Court of Appeal.

3. High Court, Grigson J: Purported to transfer an appeal to the Court of Appeal and to suspend possession pending appeal. That order was subsequently declared a nullity.

4. County Court, Judge Cotterill: Refused permission to appeal from District Judge White's order, initially on paper and then at an oral hearing. The interim stay pending the oral hearing came to an end.

5. County Court, District Judge White: Made the possession-related decision and declined to stay enforcement because the applicants could not pay the current mortgage instalments and the arrears exceeded £200,000.