Weston & Anor v Weston & Ors

On a second appeal, permission is available only where the proposed appeal raises an important point of principle or practice, or where another compelling reason justifies a hearing. The court may refuse permission to add a party late in long-running proceedings where the relevant interest is already represented, the proposed party would add nothing materially different, and joinder would frustrate finality. A compelling reason may nevertheless arise where the lower court appears to have based its decision on a document whose significance may have been fundamentally misunderstood, particularly where the affected litigant had no effective opportunity to make submissions about it. Permission may then be granted despite the need to bring the litigation to an end, with a stay and appropriate case-management directions.

The proceedings concerned a partnership action begun in the 1970s. The original claimant was the estate of Fred Weston, represented by Ellen Weston and Glyn Weston. After Ellen’s death, Glyn remained the surviving personal representative. Dennis Weston, one of Ellen’s personal representatives, applied to be joined as an additional claimant.

The High Court dismissed both first appeals from orders made by Master Bowman. It upheld the refusal to join Dennis and effectively upheld an order allowing the defendants’ costs to be assessed and paid from funds held in court before distribution, while also fixing Glyn’s costs at £12,000. Glyn and Dennis each sought permission for a second appeal. The central questions were whether either proposed appeal met the second-appeal threshold and whether the circumstances surrounding the lower court’s reliance on a taxation certificate supplied a compelling reason for Glyn’s appeal to be heard.

1. Dennis Weston’s application. The statutory second-appeal threshold in CPR 52.13 was not met. Fred Weston’s estate was already represented by Glyn, Dennis was not a personal representative of Fred’s estate, and there was no real prospect that an appeal against refusal of joinder would succeed. The Master’s discretion under CPR 19.1 disclosed no proper basis for intervention. Adding a further party at that stage of exceptionally prolonged litigation would also be inconsistent with the need for finality.
2. Glyn Weston’s application. The same finality considerations did not exclude permission. The lower judge had relied on a taxation certificate discovered during his own researches and had devised an intermediate costs solution on that basis. The certificate might relate to a different passing-off action rather than the partnership action. Glyn had not received the draft judgment or the relevant covering material until after judgment was handed down and therefore had no effective opportunity to make submissions on the documents. That created a substantial possibility that the decision below rested on a fundamental mistake and constituted a compelling reason under CPR 52.13 for the proposed appeal to be heard.
3. Permission was therefore granted to Glyn and refused to Dennis. The judge’s order was stayed pending the substantive appeal, with liberty to the defendants to apply on notice to discharge the stay. The substantive appeal was directed to be heard by three judges, one of whom could be a High Court judge, with a four-hour time estimate.

• Court of Appeal (Civil Division) — The applications arose from the High Court Chancery Division’s dismissal of the first appeals from Master Bowman’s orders. Permission for a second appeal was granted to Glyn Weston and refused to Dennis Weston. The order below was stayed pending the substantive appeal: [2006] EWCA Civ 42.