MA Holdings Ltd. v George Wimpey UK Ltd, R (of the Application of) & Anor

A person may be an appellant under CPR r 52.1(3)(d) although they were not a party to the proceedings below. The separate definition of respondent does not imply a contrary restriction. Permission remains subject to the ordinary threshold and discretion. A non-party must have a genuine interest in the appeal and show real prospects of success or another compelling reason. The fact that the person did not, or would probably not, have been joined below does not itself bar permission to appeal. Where the original defendant will not appeal, an affected property owner with real prospects of success may suffer injustice if denied the opportunity to appeal.

MA Holdings Limited, the owner of land allocated for residential development in a local plan, sought permission to appeal after George Wimpey UK Limited successfully challenged that allocation under section 287 of the Town and Country Planning Act 1990.

Wyn Williams J had allowed the statutory challenge, quashed the relevant parts of the plan, and dismissed a related judicial review claim: [2007] EWHC 628 (Admin). The local authority chose not to appeal. MA had known of, but had not been a party to, the High Court proceedings.

The central issue was whether CPR r 52.1 permitted a non-party to seek permission to appeal and, if so, whether permission should be granted on these facts.

1. Permission to appeal was granted. Dyson LJ, with whom Lloyd LJ agreed, held that the Court of Appeal had jurisdiction to entertain MA’s application despite MA not having been a party below.

2. CPR r 52.1(3)(d) defines an appellant as a person who brings or seeks to bring an appeal. Its ordinary meaning contains no requirement that the person was a party in the lower court. That conclusion was reinforced, rather than undermined, by CPR r 52.1(3)(e): the rule expressly requires prior party status for one category of respondent, but does not do so for an appellant.

3. The court did not need to decide whether an inherent jurisdiction survived. Former practice, illustrated by Re B (an infant) [1958] 1 QB 12, supplied context, but the CPR wording resolved the jurisdictional issue. Nor did the probable failure of an application to join MA under CPR r 19 determine whether MA could seek permission to appeal. Applying the approach in Warren v Uttlesford District Council [1996] COD 262, MA would probably not have needed to be joined while the council defended the local plan. The council’s decision not to appeal materially changed the position.

4. Permission remained discretionary under CPR r 52.3. MA was not a busybody: the order quashing part of the local plan affected its property interests. MA could not fairly be criticised for awaiting the council’s decision, and its proposed appeal had real prospects of success, including on the adequacy of the council’s reasons. It would therefore be unjust to prevent MA from seeking to overturn the order.

• Court of Appeal (Civil Division): Granted MA Holdings Limited permission to appeal against the High Court decision: [2008] EWCA Civ 12.

• High Court (Queen’s Bench Division): Wyn Williams J allowed George Wimpey UK Limited’s application under section 287 of the Town and Country Planning Act 1990, quashed the relevant local-plan allocations, and dismissed the related judicial review claim: [2007] EWHC 628 (Admin).