Osuji v Holmes & Ors

Permission for a second appeal should ordinarily be granted only where there is an important point of principle or practice, or another compelling reason for hearing the matter. An unresolved question concerning CPR Rule 38.2(2)(a), involving an interim injunction granted in one court and proceedings commenced in another, was sufficient to meet that threshold. The court granted permission without deciding the substantive issue or the validity of the resulting costs certificate.

The appellant obtained a High Court injunction restraining enforcement of a magistrates’ liability order. The order required proceedings to be commenced within seven days. Proceedings were instead issued in the county court, then discontinued without court permission and subject to a condition that there be no order as to costs.

A default costs certificate was obtained. District Judge Lightman and His Honour Judge Edward Bailey held that permission to discontinue was unnecessary because the proceedings should have been pursued in the High Court. The appellant renewed an application for permission to bring a second appeal. The central issue was whether CPR Rule 38.2(2)(a) applied in those circumstances.

Application granted. Elias LJ treated the matter as a renewed application for permission to bring a second appeal, rather than a determination of the substantive appeal.

1. Permission for a second appeal should not ordinarily be granted unless the case raises an important point of principle or practice, or there is some other compelling reason for the court to hear it.
2. CPR Rule 38.2(2)(a) requires a claimant to obtain the court’s permission to discontinue a claim where the court has granted an interim injunction and a party has given an undertaking to the court. The appellant argued that the requirement applied because the injunction contained an undertaking to commence proceedings, and that the discontinuance was therefore unlawful, invalidating the costs orders or certificate.
3. The lower courts had concluded that the rule did not apply because the proceedings should have been brought in the High Court under the injunction but were commenced in the county court. Elias LJ considered those observations to have considerable force, but identified no clear authority determining whether permission is required where the injunction is granted in the High Court and proceedings are commenced in the county court, particularly where the order requires proceedings within seven days without specifying the court.
4. That unresolved issue constituted a point of principle sufficient to justify permission. The court noted concerns about the sums involved and the continuing dispute over the magistrates’ order, but granted the application, leaving the applicant to take the risk of pursuing the appeal and paying the associated costs.

• Court of Appeal (Civil Division): [2010] EWCA Civ 1249. Pitchford LJ refused permission on paper. On renewal, Elias LJ granted permission to pursue the second appeal.
• Central London County Court: District Judge Lightman and, on appeal, His Honour Judge Edward Bailey held that court permission was not required for the discontinuance. The challenge to the default costs certificate therefore did not succeed.