Guy v Barclays Bank Plc

The jurisdiction under CPR 52.17 to reopen a final appellate determination is exceptionally narrow. It exists to prevent real injustice where the integrity of the earlier process has been critically undermined, such as by bias, fraud affecting the appellate process, or an equivalent procedural corruption.

An alleged error of law, fresh argument, or a contention that an earlier court should have regarded an appeal as arguable does not suffice. The same strict approach applies when the final determination to be reopened is a refusal of permission to appeal, because CPR 52.17 treats such an application as an appeal. Finality therefore prevails unless the stringent conditions for reopening are met.

Trevor Guy sought to reopen the Court of Appeal’s earlier refusal of permission to appeal a High Court order granting Barclays Bank PLC summary judgment. He contended that the earlier court had been plainly wrong to hold that his proposed challenge under the Land Registration Act 2002 had no realistic prospect of success.

The underlying dispute concerned land which Mr Guy alleged had been transferred without his authority, followed by a registered charge in favour of the Bank. The earlier refusal of permission was given by Carnwath and Lloyd LJJ in [2008] EWCA Civ 452.

The central issue was whether CPR 52.17 permitted the court to reopen that final refusal merely because the legal argument had been, or could now be, advanced more strongly.

1. Application dismissed. The applicant had not shown any basis for reopening the final refusal of permission to appeal.

2. CPR 52.17 is to be applied in accordance with Taylor v Lawrence [2002] EWCA Civ 90. The jurisdiction is not a general power to correct appellate error. It is a very narrow power directed to preserving the court’s character as a court of justice, while respecting the fundamental public interest in finality.

3. Following In re Uddin (A Child) [2005] EWCA Civ 52, the integrity of the earlier litigation process must have been critically undermined. An allegedly wrong legal conclusion, without a corrupted process or an equivalent exceptional circumstance, cannot meet that standard. The applicant’s revised ways of putting the land-registration point showed, at most, that the earlier court might have reached a legal error; they did not establish any procedural corruption or real injustice within CPR 52.17.

4. A party cannot use the jurisdiction to present an available argument more effectively after an unsuccessful hearing. That course was inconsistent with Jaffray v Society of Lloyd’s [2007] EWCA Civ 586.

5. The same criteria govern reopening a refusal of permission to appeal and reopening an appeal decided after full argument. CPR 52.17(2) includes an application for permission to appeal within “appeal”, and a different test would undermine certainty and finality. The earlier refusal therefore remained final.

• Court of Appeal (Civil Division): The Master of the Rolls, with whom Patten and Black LJJ agreed, dismissed the CPR 52.17 application and left the earlier refusal of permission to appeal undisturbed.
• Court of Appeal (Civil Division): Carnwath and Lloyd LJJ refused permission to appeal from the High Court’s summary-judgment order: [2008] EWCA Civ 452.
• High Court, Chancery Division: Mr Terence Mowschenson QC, sitting as a deputy judge, granted Barclays Bank PLC summary judgment under CPR 24 on 16 January 2008 and refused permission to appeal. No citation was stated.