Winsor v Vale

A court has no jurisdiction to entertain a purported second appeal where permission to bring the first appeal has been refused. The absence of a first appeal is determinative, irrespective of any further dispute about the merits of the underlying proceedings.

Under Civil Procedure Rules 1998, a deputy master may dismiss an appeal at the request of a bankrupt appellant’s trustee. A formal error in the dismissal request will not justify reopening the dismissal where it causes no substantive prejudice, including to a protected party whose interests were advanced by the decisions below.

Mr Winsor sought an oral reconsideration of Lord Justice McFarlane’s order confirming a deputy master’s dismissal of his application for permission to appeal. The dismissal followed the decision of his joint trustees in bankruptcy not to continue the proceedings.

The application ultimately sought to challenge Baker J’s refusal of permission to appeal against Senior Judge Lush’s refusal to remove Mr Vale as P’s litigation friend. The underlying proceedings concerned an interest in an estate under the Inheritance (Provision for Family and Dependants) Act 1975.

The central issues were whether an error in the trustee’s dismissal form mattered, and whether the Court of Appeal had jurisdiction to challenge a refusal of permission on the first appeal.

1. The application was dismissed. McFarlane LJ declined to alter his order of 24 March 2014, which had confirmed the deputy master’s dismissal of the application for permission to appeal.

2. The joint trustees in bankruptcy controlled whether the bankrupt could continue the application. They decided not to pursue it and requested its dismissal. Under Civil Procedure Rules 1998, r 52.16, the deputy master had jurisdiction to approve that dismissal, and the judge’s review under r 52.16(5) properly confirmed it.

3. The trustee’s form incorrectly certified that the matter was not an appeal or application from a Court of Protection decision. That error was immaterial. The purpose of the exception for Court of Protection proceedings is to ensure that withdrawal does not compromise the protected party’s interests. Here, the decisions of Senior Judge Lush and Baker J had both accorded with the position advanced for P, so withdrawal did not prejudice P.

4. Independently, the Court of Appeal lacked jurisdiction. Its jurisdiction over a second appeal arises only where there has been a first appeal. Baker J had refused permission to bring the first appeal, so there was no jurisdiction to challenge that refusal in the Court of Appeal. The application would therefore have been struck out even without the trustee’s request for dismissal.

5. The court directed that Mr Winsor receive copies of his notice, the trustee’s completed form 254A and the trustee’s covering letter.

• Court of Appeal (Civil Division): McFarlane LJ dismissed the application for an oral reconsideration and confirmed the dismissal of the application for permission to appeal.
• High Court, Court of Protection: Baker J refused Mr Winsor permission to appeal Senior Judge Lush’s order on 26 November 2012, describing the application as totally without merit.
• Court of Protection: Senior Judge Lush refused, on 19 June 2012, an application to remove Mr Vale as P’s litigation friend.