Graham & Ors v Mayrick

Permission for a second appeal may be granted where the proposed appeal raises an arguable point of principle or general importance, or where a significant issue arose only at the hearing below and it would be harsh to apply the second-appeal restriction rigidly. The Court of Appeal should be slow to interfere with a judge who uses CPR Part 24 to avoid an unnecessary trial, where doing so is just. Permission may be granted on terms regulating the points that may be argued on appeal.

The defendant sought permission to bring a second appeal from Hart J in the Chancery Division. The underlying dispute concerned adverse possession of land, including whether title could be established without identifying the paper-title owner and whether the defendant had acquired 12 years’ exclusive possession. Jacob LJ had refused permission. The renewed application raised the operation of CPR Part 24, the second-appeal threshold under rule 52(3), and the fairness of relying on a point first raised by the judge at the hearing.

1. Permission granted. Although this was a second appeal and rule 52(3) could not be overlooked, the application raised two arguable points. The first concerned whether the general principle that adverse possession requires identification of the dispossessed paper-title owner applied without modification in every case.
2. The second concerned the judge’s finding that the defendant lacked 12 years’ exclusive possession. That issue had been identified by Hart J rather than by the first-instance judge, and the defendant had corrected his earlier evidence when invited to address it. In those circumstances, treating the matter as an ordinary second appeal was potentially harsh.
3. The general complaint that Hart J had conducted a mini-trial under CPR Part 24 did not justify intervention. The Court of Appeal should be very slow to interfere with a judge prepared to examine a case in depth to avoid a trial where doing so is just.
4. Permission was granted on terms that the respondents would not oppose arguments which had been run below. The respondents were given 21 days to consider any cross-appeal. A stay of execution was granted, subject to an application by the respondents to discharge it.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 840, Lord Justice Neuberger granted permission on a renewed application, together with a stay of execution and directions concerning arguments and any cross-appeal.
• Chancery Division: Hart J had decided the underlying adverse-possession dispute against the defendant on the evidence and refused further evidence on the exclusive-possession point. The judgment appealed from is not separately cited in the supplied text.
• Earlier permission decision: Jacob LJ refused permission on the basis that this was a second appeal and the second-appeal requirements were not satisfied.