Freeguard v Royal Bank of Scotland

The exceptional jurisdiction under the Civil Procedure Rules 52.17 to reopen a final determination of an appeal cannot be used to challenge a first-instance order. The proper route is an appeal. The Court of Appeal has no further jurisdiction to review a High Court refusal to reopen an earlier appeal decision. On a second appeal, permission requires an important point of principle or practice, or another compelling reason. That threshold is stringent and truly exceptional. Ordinarily, anything less than very good prospects of success will rarely suffice. Failure to raise evidence or a claim at the proper earlier stage, without procedural unfairness, will not satisfy the test.

Two applications for permission to appeal arose from a Chancery dispute concerning the Bank’s sale of the Back Land and the Strip. Deputy Master Cousins struck out the claim. On appeal, Mr Simon Berry QC reinstated only an arguable undervalue claim concerning the Strip.

Lightman J refused an attempt under Civil Procedure Rules 52.17 to reopen the Deputy Master’s first-instance order. Separately, Master Bowles refused permission to re-amend the pleadings to pursue the Back Land and claims in malicious falsehood and slander of title. Her Honour Judge Alton dismissed the appeal. The issues were whether the first application was procedurally available and whether the second appeal met the statutory permission test.

1. First application. The application to reopen Deputy Master Cousins’s order was refused. The jurisdiction associated with Taylor v Lawrence [2002] EWCA Civ 90 is confined to reopening a final determination of an appeal. It cannot be used to challenge a first-instance decision. The proper course was an appeal, which had already been pursued before Mr Berry. The issues now raised had not been advanced in that appeal and it was too late to raise them again.
2. The Court of Appeal also lacked jurisdiction to entertain a further challenge to the High Court’s refusal to reopen the matter. Andrew Parker v Graham Hutchings [2004] EWCA Civ 254 established that there is no further recourse after a lower appeal court has refused to reopen an appeal decision. Permission therefore could not properly be granted.
3. Second application. This was a second appeal. Under the Civil Procedure Rules 52.13(2), permission required either an important point of principle or practice, or some other compelling reason. No important point was identified. Following Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, the compelling-reason limb was treated as a stringent and truly exceptional test. Anything less than very good prospects of success would rarely suffice. The policy of finality in second appeals was also recognised, as explained in Tanfern and in Iftakar Ahmed v Stanley A Coleman and Hill [2002] EWCA Civ 935.
4. There was no material procedural irregularity. The hearing had been adjourned to allow the applicant to consider the Bank’s skeleton argument, and documents not provided to her were disregarded. Evidence and claims concerning the Back Land should have been advanced before the Deputy Master or, at latest, on the earlier appeal. The delay and the fact that the Strip trial had already been fixed reinforced the absence of any compelling reason. The prospects of success were poor.
5. Order. Both applications were refused. No order as to costs.

• Court of Appeal (Civil Division): On 7 April 2005, Lord Justice Clarke refused both applications for permission to appeal and made no order as to costs.
• High Court, Chancery Division: Lightman J refused the application to reopen the first-instance order under Civil Procedure Rules 52.17. Her Honour Judge Alton dismissed the appeal against Master Bowles’s refusal to permit further amendment of the pleadings.
• Chancery Division: Deputy Master Cousins struck out the claim. On appeal, Mr Simon Berry QC sitting as a Deputy Judge allowed the appeal in part and preserved only the claim concerning the Strip. Master Bowles later refused permission to re-amend the Particulars of Claim.