Uphill v BRB (Residuary) Ltd

Permission for a second appeal is exceptional. An “important point of principle or practice” under rule 52.13(2)(a) of the Civil Procedure Rules 1998 means a point which has not already been established. A dispute about the correct application of an established principle does not qualify.

An “other compelling reason” under rule 52.13(2)(b) will usually require very high prospects of success, although that condition is not sufficient. The court must consider all the circumstances, including whether the applicant contributed to the error. Serious procedural unfairness may supply a compelling reason despite lower prospects of success.

A defendant who acknowledges service and fails to challenge jurisdiction within the 14-day period prescribed by rule 11 accepts the court’s jurisdiction and cannot later rely on invalid service.

The claimant sought damages arising from her husband’s alleged occupational exposure to asbestos. The claim form was issued shortly before limitation expired, but it was not served during the ordinary four-month period. A without-notice order extended time, after which the claim form was sent to the defendant’s loss adjusters.

District Judge Doel declined to set aside the extension. He held that service on the loss adjusters was invalid, but dispensed retrospectively with service under rule 6.9 of the Civil Procedure Rules 1998. His Honour Judge Wyn Williams QC upheld the extension and dispensing order on the first appeal. He also held that the defendant had waived its right to challenge service.

The defendant applied to the Court of Appeal for permission to bring a second appeal. The central questions concerned the meaning of “an important point of principle or practice” and “some other compelling reason” in rule 52.13(2), together with the effect of rule 11 on the defendant’s service objection.

1. The application for permission to appeal was refused. Rule 52.13(2) of the Civil Procedure Rules 1998 embodies the exceptional character of second appeals. The decision on the first appeal will ordinarily be final because certainty, proportionality and reasonable expense require litigation to conclude.

2. Rule 52.13(2)(a) is concerned with an important point of principle or practice which has not yet been established. A complaint that a lower court misapplied an established principle does not satisfy the rule. Treating every alleged misapplication of an important principle as qualifying would open second appeals far beyond the intended exceptional jurisdiction.

3. Under rule 52.13(2)(b), the prospects of success will almost always be the starting point. The prospects must ordinarily be very high, as where the first appellate decision is perverse, plainly wrong or inconsistent with higher authority. Very high prospects are usually necessary but are not sufficient. The court must examine all the circumstances, including whether the applicant contributed to the lower court’s mistake. Serious procedural irregularity rendering the first appeal unfair may itself provide a compelling reason, even where the applicant has only a real prospect of success.

4. The approach in Hashtroodi v Hancock [2004] EWCA Civ 652, [2004] 1 WLR 3206 showed that the proposed challenge to the extension of time had very strong prospects. The lower courts had not evaluated the reason for failing to serve within four months. Nevertheless, the defendant’s advisers knew of that authority before the first appellate order was sealed and should have brought it to the judge’s attention. Their omission meant that justice did not require a further appeal. If the authority was immaterial because of the waiver finding, it supplied no compelling reason in any event.

5. The service objection was governed by rule 11. The defendant filed an acknowledgment of service but did not apply to dispute jurisdiction within 14 days. Rule 11(5) therefore treated it as having accepted the court’s jurisdiction. It could not subsequently contend that service on the loss adjusters was invalid. No important new point or other compelling reason arose, and the proposed challenge to the dispensing order under rule 6.9 was consequently moot.

1. Court of Appeal (Civil Division): In Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, the court refused permission for a second appeal. The County Court’s first appellate decision remained undisturbed.

2. Cardiff County Court, His Honour Judge Wyn Williams QC: On the first appeal, the judge upheld the refusal to set aside the extension of time. He held that service on the loss adjusters was invalid but that exceptional circumstances justified dispensing with service. He also held that the defendant had waived its objection.

3. Cardiff County Court, District Judge Doel: The judge refused to set aside the extension. He held that service on the loss adjusters was invalid, retrospectively dispensed with service under rule 6.9 of the Civil Procedure Rules 1998, and rejected the claimant’s waiver argument.

4. Cardiff County Court, Deputy District Judge Jones: Without notice, the judge extended the time for serving the claim form until 1 April 2003.