Parker v Hutchings

A refusal by an appellate court to reopen its own decision under the exceptional Taylor v Lawrence jurisdiction is not itself subject to a further appeal. Permission for a second appeal requires an important point of principle or practice, or another compelling reason. An assertion that a witness lied will not ordinarily satisfy that threshold where the complaint turns on credibility assessed by the trial judge.

A Grepe v Loam order regulates further applications within particular litigation. It differs from wider civil restraint orders and need not initially contain a fixed time limit. A person subject to it may seek release if continuing control is no longer needed.

The parties had conducted lengthy boundary litigation. Following a four-day county court hearing in 2000, Judge Jones decided the location of the boundary in the claimant’s favour. A first appeal to Jacob J did not proceed because it had no prospect of success and was disproportionate.

The defendant later sought allocation of the proceedings to the multi-track. Neuberger J dismissed his appeal from Judge Jones’s refusal, although holding that Judge Jones had been wrong to think that he lacked jurisdiction to consider the application. Neuberger J subsequently refused to reopen the earlier permission decision under the Taylor v Lawrence jurisdiction and made a Grepe v Loam order.

The defendant sought permission to challenge those decisions and, out of time, the litigation-control order. The central issues were jurisdiction to entertain a further challenge to the refusal to reopen, the threshold for a second appeal, and the validity of the Grepe v Loam order.

1. Applications dismissed. Brooke LJ, with whom Scott Baker LJ agreed, held that the Court of Appeal had no jurisdiction to entertain a further appeal from Neuberger J’s refusal to reopen an appellate decision under the Taylor v Lawrence jurisdiction. The exceptional reopening procedure is tightly controlled to protect the finality of litigation. The application was therefore bound to fail.
2. Permission for the proposed second appeal from Neuberger J’s earlier allocation decision was refused. Such permission could be granted only for an important point of principle or practice, or another compelling reason. The allegation that the claimant had lied raised a credibility complaint. It did not disclose a compelling reason because the trial judge had seen and assessed the witnesses, and nothing in Neuberger J’s careful judgment justified a second appeal.
3. The challenge to the Grepe v Loam order was also rejected. Under the new CPR appellate regime, time runs from the making of the order; unresolved costs or ancillary matters do not postpone it.
4. A Grepe v Loam order is confined to the particular litigation. It is therefore materially different from the wider restraint orders considered in Bhamjee v Forsdick (No.2) [2003] EWCA Civ 1113, which should initially be time-limited. The absence of a time limit in this order gave no basis for an appeal. If control later ceased to be necessary, the defendant could apply to the judge administering the order for release from it.
5. There was no order for costs. The court declined at that stage to impose further restrictions on the defendant’s access to the Court of Appeal, while warning that unmeritorious future applications could justify restraint.

• Court of Appeal (Civil Division): In Parker v Hutchings [2004] EWCA Civ 254, the court dismissed the applications. It held that no further appeal lay from the refusal to reopen, refused permission for a second appeal, and rejected the late challenge to the Grepe v Loam order.
• High Court: Neuberger J dismissed the appeal concerning allocation to the multi-track. He later refused to reopen the earlier permission decision and made the Grepe v Loam order.
• High Court: Jacob J, sitting as a first appeal court, held that the proposed appeal from Judge Jones’s substantive decision had no prospect of success and would be disproportionate.
• County Court: Judge Jones determined the boundary dispute in the claimant’s favour and later refused the application to allocate the proceedings to the multi-track.