Wood v Wood

Section 54(4) of the Access to Justice Act 1999, read with paragraph 4.8 of the Practice Direction, prevents a further appeal where an appellate court has refused permission to appeal. That remains so even where permission was not sought from the first-instance judge. The operative order governs. A judge’s provisional view that permission would have been granted does not override an express refusal after consideration of the merits. A direction dismissing the underlying appeal does not alter that conclusion.

The dispute arose from ancillary relief proceedings in which Mr Baker and Mrs Rowe intervened to claim beneficial ownership of the matrimonial home. The district judge found in Mrs Rowe’s favour and ordered Mr Baker to pay her costs. On appeal, HHJ Vincent considered the merits but made an order refusing permission to appeal and dismissing the appeal.

Mr Baker renewed his application in the Court of Appeal. The central issues were whether the Court of Appeal had jurisdiction to entertain a further application for permission and whether the county court judge’s reasons created a contradiction in the operative order.

The application was refused. Ward LJ gave the principal judgment, and Rix LJ agreed.

1. Jurisdiction. The general rule under section 54(4) of the Access to Justice Act 1999 and paragraph 4.8 of the Practice Direction is that, where an appellate court refuses permission to appeal, there is no further appeal to the Court of Appeal. The fact that the district judge had not previously been asked to grant permission did not avoid that bar.
2. Effect of the county court order. HHJ Vincent’s observation that he would have granted permission had the issue been considered separately was not a grant of permission. His operative conclusion expressly refused permission. The judge was entitled to consider the merits when deciding whether permission should be granted. The additional statement that the appeal was dismissed was otiose and did not alter the refusal. The appeal was brought against the order, not merely against the reasoning, and the Court of Appeal doubted whether the order could properly have been corrected under the slip rule.
3. Unresolved costs issue. The Court of Appeal did not decide the substantive question concerning the scope of rule 2.71 of the Family Proceedings Rules. It noted that the position of an intervener who remained involved in the spouses’ dispute might differ from that where the spouses withdrew and the dispute continued only between interveners.

Order: application refused.

• Court of Appeal (Civil Division): A renewed application for permission to appeal was refused because the court had no jurisdiction to entertain a further appeal. The judgment is reported at [2009] EWCA Civ 860. Permission had previously been refused on paper by Wall LJ.
• Truro County Court: HHJ Vincent considered the merits of the appeal but refused permission to appeal and dismissed the appeal in his order of 29 January 2009.
• Truro County Court: District Judge Mitchell decided the beneficial ownership dispute in Mrs Rowe’s favour and ordered Mr Baker to pay her costs.