Michael Wilson & Partners Ltd v Emmott

An application to invoke the Court of Appeal’s residual jurisdiction to set aside a High Court judge’s refusal of permission to appeal is itself an appeal under section 16(1) of the Senior Courts Act 1981. It is not an application for a new trial under section 17. The application therefore falls within rule 52.3 of the Civil Procedure Rules 1998 and requires permission. A Court of Appeal judge may refuse permission without a hearing and may order that an application considered totally without merit cannot be reconsidered orally. This applies even where the underlying appeal arose under section 69(8) of the Arbitration Act 1996.

On 26 June 2015 Burton J granted leave to appeal from an arbitrators’ award, dismissed the appeal and refused permission to appeal to the Court of Appeal. The appellant filed a notice seeking to set aside that refusal by invoking the residual jurisdiction. Longmore LJ refused permission on paper, considering the application totally without merit, so that it could not be reconsidered at an oral hearing under rule 52.3(4A)(a) of the Civil Procedure Rules 1998. The appellant argued that the application was not an appeal and required neither permission nor paper determination. The respondent argued that it was effectively an appeal. The central issue was whether the Court of Appeal had jurisdiction to refuse such an application as totally without merit.

The question was answered Yes. The order made by Longmore LJ was within the jurisdiction of the Court of Appeal.

1. Section 69(8) of the Arbitration Act 1996 ordinarily prohibits a further appeal where a first-instance judge refuses permission. The residual jurisdiction is confined to cases in which what appears to be a decision is no true decision at all. The court referred to Henry Boot Construction (UK) Ltd v Malmaison Ltd (Manchester) Ltd [2001] Q.B. 388 and followed the earlier analysis in CGU International Insurance Plc v Astrazeneca Insurance Co Ltd [2006] EWCA Civ 1340.
2. The source of the residual jurisdiction is section 16(1) of the Senior Courts Act 1981, which confers jurisdiction to hear and determine appeals from the High Court. An application to set aside a refusal of permission in reliance on that jurisdiction is therefore an appeal. It is not an application for a new trial under section 17(1). If it were neither an appeal under section 16(1) nor an application within section 17, the Court of Appeal would have no jurisdiction to hear it.
3. The expression right of appeal in section 54(1) of the Access to Justice Act 1999 includes the right to invoke the jurisdiction conferred by section 16(1). The additional categories in sections 54(5) and 54(6) do not affect that conclusion.
4. Because the application is an appeal, rule 52.3 of the Civil Procedure Rules 1998 applies. Permission is required. Where a Court of Appeal judge refuses permission without a hearing and considers the application totally without merit, rule 52.3(4A)(a) permits an order preventing reconsideration at an oral hearing. The appellant’s proposed reliance on rule 52.16(6) could not alter that result.

1. Court of Appeal (Civil Division): The court held that the application was an appeal subject to rule 52.3 and that Longmore LJ had jurisdiction to refuse permission as totally without merit: [2015] EWCA Civ 1285.
2. High Court: Burton J granted leave to appeal from the arbitrators’ award, dismissed the appeal and refused permission for a further appeal to the Court of Appeal on 26 June 2015. No citation for that decision was stated in the judgment.