Medical Justice, R (on the application of) v Secretary of State for the Home Department

A conditional grant of permission to appeal is a single composite decision. A prospective appellant cannot accept the permission while appealing against its conditions. The appellant must accept the conditions, abandon the proposed appeal, or treat the conditional grant as a refusal and apply afresh to the appeal court.

On a fresh application, the appeal court determines permission and any conditions for itself, while giving appropriate weight to the lower court’s assessment. A party present when permission was granted cannot invoke the power under rule 52.9 to vary its conditions.

Medical Justice obtained permission to seek judicial review of the Secretary of State’s removal-notice policy, together with a protective costs order. Cranston J subsequently limited the costs recoverable by Medical Justice. Silber J allowed the judicial review claim, reported at [2010] EWHC 1925 (Admin), and granted the Secretary of State permission to appeal on conditions protecting Medical Justice against the costs of the appeal and preserving the existing costs order.

The Secretary of State challenged those conditions in the Court of Appeal. The central issue was whether a prospective appellant could retain a conditional permission while appealing against, or applying to vary, its conditions.

1. The purported appeal against the conditions could not proceed. A conditional grant of permission to appeal was one composite decision. Section 54(4) of the Access to Justice Act 1999 prohibited an appeal against that decision, including an appeal confined to its conditions. The Secretary of State therefore had to accept the conditions, abandon the proposed appeal, or treat the conditional permission as a refusal and apply afresh to the Court of Appeal under CPR 52.3(3).

2. CPR 52.9(1)(c) empowered an appeal court to impose or vary conditions upon which an appeal might be brought. CPR 52.9(3), however, prevented a party who had been present at the permission hearing from applying to vary the conditions. Whether the rule might be ultra vires in so far as it purported to permit an absent party to challenge conditions was left open.

3. The decisions in Societe Eram Shipping Co Ltd v Compagnie Internationale de Navigation [2001] EWCA Civ 568 and King v Daltray [2003] EWCA Civ 808 should not be followed on this issue. They had not considered section 54(4) or the availability of a fresh permission application. The approach taken in Kuwait Airways Corporation v Iraqi Airways Company [2005] EWCA Civ 934, which followed King, was likewise displaced.

4. A fresh application gives the appeal court jurisdiction to reconsider permission and all proposed conditions. The court may take account of the lower court’s decision and its particular ability to assess suitable conditions, but must ultimately form its own view.

5. Although no fresh application was then before the court, Lord Neuberger MR indicated that any substantive appeal would probably attract significant costs protection. A protective costs order should normally be balanced by restricting the protected party’s recoverable costs to a reasonably modest amount. Counsel could not justify a success-fee uplift where the opposing party was required to pay the appeal costs regardless of outcome.

6. Hooper LJ and Rimer LJ agreed. The parties were directed to propose a timetable for any fresh application or agreed resolution.

1. Court of Appeal (Civil Division): Held that the Secretary of State could not appeal against, or apply to vary, the conditions while retaining the conditional permission. A fresh application for permission under CPR 52.3(3) was invited.

2. High Court, Administrative Court: Silber J allowed Medical Justice’s judicial review claim, [2010] EWHC 1925 (Admin), and granted the Secretary of State permission to appeal subject to costs conditions.

3. High Court, Administrative Court: Cranston J varied the protective costs order by limiting Medical Justice’s recoverable counsel fees, [2010] EWHC 1425 (Admin).

4. High Court: His Honour Judge Thornton QC granted permission to seek judicial review and made the original protective costs order.