Feakins & Anor v Department for Environment, Food & Rural Affairs

A final appeal may be reopened only where this is necessary to avoid real injustice, the circumstances are exceptional, and no effective alternative remedy exists. Where fresh evidence is relied upon, there must be a powerful probability that the earlier result was erroneous and the resulting injustice must outweigh the strong public interest in finality.

Those requirements may be met where materially inaccurate evidence caused the appellate court to misunderstand the central facts and probably to refuse a defence which it would otherwise have permitted. A later review or damages recovery is not necessarily an effective alternative where the underlying liability remains materially disputed. The applicant’s responsibility for the original result remains relevant.

The applicants sought permission under rule 52.17 of the Civil Procedure Rules 1998 to reopen the Court of Appeal’s 2001 dismissal of their appeal from summary judgment on a counterclaim for agricultural export clawback.

Evidence emerging in a later professional negligence action, [2005] EWHC 1931 QB, showed serious inaccuracies in an official statement placed before the Court of Appeal. Those inaccuracies concerned the documents required to establish that exported sheep were exempt from clawback. The respondent nevertheless contended that its subsequent review and settlement offer, together with damages recovered in the negligence action, meant that reopening was unnecessary.

The central issue was whether the misleading evidence had probably produced a seriously unjust result and whether any effective alternative remedy removed the need to reopen the appeal.

1. Permission to reopen the appeal was justified. Moses LJ, with whom Smith and Dyson LJJ agreed, concluded that the Court of Appeal had been seriously misled about the clawback exemption system. It had incorrectly understood that the applicants could obtain and submit the decisive CES3 forms, that their conduct differed from that of other exporters, and that their export documents contained no indication of exemption. In fact, 75 of the 77 available C1220 documents had been marked in terms signifying exemption.

2. Under rule 52.17 of the Civil Procedure Rules 1998, reflecting Taylor v Lawrence [2002] EWCA Civ 90, a final appeal may be reopened only to avoid real injustice, in exceptional circumstances, where no effective alternative remedy exists. Re Uddin (A Child) [2005] EWCA Civ 52 required more than satisfaction of the ordinary fresh-evidence principles. The injustice must be sufficiently grave to outweigh finality, and there must be a powerful probability that the earlier result was erroneous. The applicant’s responsibility for the result and the availability of another remedy must also be considered.

3. That demanding threshold was met. Had the Court of Appeal understood the true system and known that nearly all the relevant export documents had been marked as exempt, it was highly likely to have set aside summary judgment and allowed the counterclaim to be defended. The respondent’s later review did not dispose of the dispute. Its own revised figures showed that the original counterclaim was excessive, while liability for a substantial part remained unresolved. Damages recovered from the applicants’ former solicitor were not shown to provide an effective remedy for the whole disputed counterclaim. Nor was the erroneous result attributable to the applicants.

4. The respondent was an arm of government. That status carried particular responsibilities for maintaining a fair scheme and conducting litigation fairly. Its prolonged attempt to recover sums which were now shown, at least in part, not to have been due reinforced the exceptional character of the injustice. The court did not decide whether the applicants ultimately had a defence or what amount remained payable. It urged the parties first to disclose all relevant material and attempt a comprehensive resolution, preferably through mediation.

1. Court of Appeal (Civil Division), 2006: held unanimously that the requirements for permission to reopen the final appeal were satisfied, while urging full disclosure and mediation before further proceedings.

2. Court of Appeal (Civil Division), 2001: dismissed the applicants’ appeal from summary judgment and refused their application to adduce further evidence. No citation for that decision is stated.

3. High Court, 2000: Ian Kennedy J entered summary judgment for the respondent on its clawback counterclaim. No citation is stated.