Keane v Green

Permission for a second appeal under Civil Procedure Rules r 52.13 may be granted where the proposed appeal raises an important point of principle or practice, or where another compelling reason justifies a hearing. A compelling reason may arise from an arguable mishap of justice caused by a material misunderstanding of the proceedings below and failure to consider documents properly formulating the claim. The court may also take account of the position of a litigant in person and the risk that a potentially valid claim is defeated by undue concentration on pleading terminology rather than proper particulars.

John Keane brought a claim alleging that employees of Robert Green had stolen three shop counters. Default judgment was entered, then set aside, and Mr Green was given permission to defend. The claim was later struck out after the district judge concluded that theft was not a civil cause of action and that the particulars were inadequate.

Judge Simpson dismissed Mr Keane’s appeal in the Mayor’s and City of London Court. The appeal proceeded in Mr Keane’s absence and on an incomplete account of what had occurred at the earlier hearing. Mr Keane applied to the Court of Appeal for permission to bring a second appeal. The central issue was whether the requirements of Rule 52.13 were satisfied.

1. Permission granted. Applying Rule 52.13 of the Civil Procedure Rules, the Court of Appeal was not persuaded that the proposed appeal raised an important point of principle or practice. It nevertheless concluded, with hesitation, that there was some other compelling reason for the Court of Appeal to hear it.
2. The compelling reason arose from an arguable mishap of justice. The district judge had initially indicated that amendment of the particulars was advisable but not obligatory, then later took the view that the claim could not proceed unless a recognisable civil cause of action was pleaded. Mr Keane had relied on the earlier indication.
3. Judge Simpson’s decision had proceeded substantially on the mistaken assumption that Mr Keane had made no relevant submission about what he had been told at the earlier hearing. The transcript showed that he had repeatedly relied on that guidance. In addition, properly particularised amended particulars and a detailed skeleton argument were available by the time of the appeal, but Judge Simpson made no reference to either document.
4. Lord Justice May observed, without making a final decision on the merits, that the use of theft terminology did not necessarily mean that the claim disclosed no civil cause of action. Depending on the facts, the underlying complaint might be formulated as conversion, detinue, or breach of duties owed by a bailee. The more significant possible deficiency in the original claim was its lack of proper particularity.
5. The court also recognised force in the general concern that an unrepresented litigant should not lose the opportunity to have a potentially simple claim tried merely because of technical pleading language. This observation did not determine the merits.

The application was allowed. Costs were reserved to the court hearing the appeal. The proposed appeal was directed to be heard by three judges, one of whom could be a puisne judge.

• Court of Appeal (Civil Division): Lord Justice May allowed the application for permission to bring a second appeal under Rule 52.13. Costs were reserved and the appeal was directed to be heard by three judges, one of whom could be a puisne judge.
• Mayor’s and City of London Court: Judge Simpson dismissed Mr Keane’s appeal against the district judge’s order striking out the claim.
• District judge: Default judgment was set aside and the defendant was permitted to defend. The claim was subsequently struck out on the basis that it did not plead a civil cause of action and was insufficiently particularised.