Messer v Messer & Anor

A final determination of an appeal cannot be reopened by recasting a challenge to an underlying order as a challenge to a later committal or procedural order. Once the underlying proceedings have been finally disposed of, the Court of Appeal cannot revisit them in a subsequent application. Its residual jurisdiction to reopen a final determination is confined to rule 52.17 of the Civil Procedure Rules 1998. Reopening must be necessary to avoid real injustice, arise in exceptional circumstances making it appropriate, and be unavailable through any alternative effective remedy. A proposed application must be made in writing and properly supported. An adjournment may be refused where the substantive application has no realistic prospect of success.

This was a further procedural hearing in lengthy possession and committal proceedings concerning property in Old Harlow. On 30 October 2000, District Judge Blomfield ordered Mrs Thanom Messer to give up possession. Mr Justice Lindsay finally disposed of the possession proceedings by refusing permission to appeal in July 2004.

Earlier Court of Appeal decisions in December 2004 and January 2005 confined the remaining appeal to a suspended committal order and refused permission to appeal to the House of Lords. After a Deputy Master declined to issue a proposed review application, Mrs Messer sought an adjournment and pursued an application directed in substance to setting aside the possession order. The central issue was whether the Court of Appeal could entertain that challenge outside rule 52.17 of the Civil Procedure Rules 1998.

Lord Justice Clarke gave the judgment, with which Lord Justice Jonathan Parker agreed. The applications were refused.

1. The possession order had been finally disposed of when permission to appeal was refused by Mr Justice Lindsay in July 2004. The arguments concerning disclosure, legal representation, the applicant’s understanding of the proceedings and the alleged unfairness of the possession order therefore challenged the underlying order, rather than the suspended committal order then in issue. Those matters could not be advanced in the later committal proceedings.
2. The Court of Appeal had no general jurisdiction to review an order refusing an application or to set aside its own final determination of an appeal. An appeal from a decision of the Court of Appeal on appeal could be entertained only by the House of Lords. The Court of Appeal’s remaining jurisdiction was the limited power under rule 52.17 of the Civil Procedure Rules 1998.
3. Under rule 52.17(1), reopening a final determination required all three conditions to be satisfied: it had to be necessary to avoid real injustice; the circumstances had to be exceptional and make reopening appropriate; and there had to be no alternative effective remedy. Any such application had to be made in writing, properly supported and directed to those criteria. The court had earlier considered an oral hearing under rule 52.16, particularly rule 52.16(3), to be at least arguable, but that did not establish jurisdiction to reopen the appeal.
4. The proposed application did not include an application under rule 52.17. Its substance was a challenge to the final possession order and was doomed to fail. No useful purpose would have been served by an adjournment to prepare further material, so the adjournment and the application were refused.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 387, the court refused the application for an adjournment and the substantive application to reopen or set aside the earlier Court of Appeal determination.
• Court of Appeal: On 21 December 2004, Lord Justice Waller refused all applications save an appeal concerning a suspended committal order. On 19 January 2005, Lord Justice Waller and Lord Justice Laws dealt with that committal strand and refused permission to appeal to the House of Lords.
• High Court: In July 2004, Mr Justice Lindsay refused permission to appeal against the original possession order, bringing the possession strand of the litigation to an end.
• County Court and District Judge: District Judge Blomfield made the possession order on 30 October 2000. An ancillary application concerning delivery of documents was later refused by the Cambridge County Court, including on appeal before His Honour Judge O’Brien on 16 March 2005.