Scribes West Ltd v Relsa Anstalt & Anor (No 2)

Under the Access to Justice Act 1999 (Destination of Appeals) Order 2000, the destination of an appeal is determined from the language of the lower court’s order. An appellate court should not reconstruct a different order from the hearing, the parties’ intentions or the judge’s reasoning.

An order striking out proceedings or refusing summary judgment is not a final decision because it would not determine the entire proceedings whichever way the issues were decided. A claim commenced under CPR Part 55 remains a Part 7 claim where the prescribed claim form does not state that it proceeds under Part 8.

The claimant sought relief from forfeiture of a business lease and later proposed a declaration that the landlord’s re-entry had been ineffective. Judge Mayer refused permission to amend, refused to join additional parties and ultimately struck out the proceedings.

Permission to appeal was granted, but the Civil Appeals Office questioned whether the appeal lay directly to the Court of Appeal or instead to a High Court judge. The claimant argued that the county court had effectively tried a preliminary issue and made a final decision. The respondent characterised the order as a striking-out decision and also contended that a Part 55 claim was not a Part 7 claim for the purposes of the Access to Justice Act 1999 (Destination of Appeals) Order 2000.

The Court of Appeal determined the proper destination of the appeal.

1. The appeal lay to a High Court judge. The Court of Appeal therefore did not have jurisdiction to determine it through the ordinary route of appeal. Brooke LJ gave the judgment, with which Mance and Dyson LJJ agreed.

2. The relevant decision for the Access to Justice Act 1999 (Destination of Appeals) Order 2000 was the county court’s order. Its language had to determine the destination of the appeal. An appellate court could not investigate which different order might have been made had the parties framed their applications or submissions differently. If a party considered that the order had been drawn incorrectly, it should first seek correction in the lower court and could then raise the refusal on appeal.

3. The order was not to be reinterpreted as though the judge had allowed the proposed amendments, directed the trial of a preliminary issue and granted a declaration. The judge had refused the amendments and joinder and had struck out the proceedings. Any binding declaratory order would also have required the formal joinder and notification of other persons whose interests would be affected.

4. Article 1 of the Destination Order supplied a statutory code for identifying a final decision. Courts and practitioners should apply its language rather than return to the uncertain pre-1993 case law distinguishing final and interlocutory orders. A striking-out order or an order giving or refusing summary judgment under CPR Part 24 is not a final decision for this purpose because it is not a decision that would determine the entire proceedings whichever way the issues were decided.

5. The respondent’s alternative argument concerning CPR Part 55 was rejected. The prescribed form for a claim seeking relief from forfeiture did not state that the claim proceeded under Part 8. Under the applicable procedural direction, it therefore proceeded under Part 7. Since the claim had been allocated to the multi-track, a genuinely final decision in it would have fallen within article 4 of the Destination Order.

6. Whether the appeal should subsequently be transferred from the High Court to the Court of Appeal was left for determination by Brooke LJ sitting as a High Court judge after further submissions.

• Court of Appeal (Civil Division): Held in [2004] EWCA Civ 965 that the appeal from the striking-out order lay to a High Court judge. Any request to transfer the appeal to the Court of Appeal was left for later determination.
• Central London County Court: Judge Mayer refused permission to amend the particulars of claim, refused joinder of additional parties and ultimately struck out the entirety of the proceedings.