Topham & Anor v French (As Trustee In Bankruptcy of Topham)

[2009] EWCA Civ 1129

Summary

Permission for a second appeal requires either an important point of principle or practice, or another compelling reason. A compelling reason may exist where there is an arguable risk of gross unfairness in the order under challenge, even if the case raises no wider issue. Granting permission does not determine the merits.

Factual background

Mr and Mrs Topham sought permission for a second appeal against the High Court’s dismissal of their appeal from a costs order made by District Judge Merrick. The order required them to pay costs thrown away by an adjournment concerning rectification of their matrimonial home and an equity of exoneration argument.

The central issue was whether the proposed appeal met the second-appeal permission threshold.

Held

  1. Permission granted.
  2. The application raised no important point of principle or practice.
  3. There was nevertheless a compelling reason to hear the appeal. It was reasonably arguable that it might be grossly unfair to impose the adjournment costs when the court and parties had misunderstood the limits of the County Court’s jurisdiction, including that the equity of exoneration issue was within its jurisdiction.
  4. The merits remained open for determination by the full court.

The court’s approach to earlier authorities

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Appellate history

  • Court of Appeal (Civil Division): Permission granted for a second appeal.
  • High Court, Chancery Division: Appeal dismissed on 11 December 2008.
  • Brighton County Court: Costs order made on 7 January 2008.

Appeal route

  1. Appealed fromNot stated in the judgmentThis appealapplication granted
  2. This judgment [2009] EWCA Civ 1129 Court of Appeal (Civil Division)

Key cases cited

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Cases citing this case

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