Fagbolagun (t/a Baganton Property Services) v Alade

Section 54(4) of the Access to Justice Act 1999 prevents the Court of Appeal from granting permission to appeal against a High Court judge’s refusal of permission to appeal from a county court. A challenge to consequential costs remains distinct, but succeeds only within the narrow limits of appellate review of costs discretion. Disclosure objections must be directed to identifiable documents. A finding that an application is totally without merit requires consideration of a civil restraint order, but does not compel one.

The appellant renewed an application for permission to appeal from an order made by Mr Fancourt QC, sitting as a deputy judge of the Chancery Division, on 6 November 2014. That order refused permission to appeal paragraphs 2 to 7 of an order made by HHJ Gerald in the Central London County Court on 8 November 2013 and ordered payment of the respondent’s costs.

The appellant challenged an unless order requiring answers to a request and specific disclosure. The challenge alleged that disclosure was too wide, that some documents did not exist or were irrelevant, and that disclosure infringed rights under articles 6 and 8 of the European Convention of Human Rights. The Court considered its jurisdiction to entertain the renewed permission application and whether a civil restraint order was appropriate.

Disposition. The renewed application for permission to appeal was refused as entirely without substance or merit. A limited civil restraint order was made in relation to the proceedings.

1. Jurisdiction. Section 54(4) of the Access to Justice Act 1999 creates a jurisdictional bar. The Court of Appeal could not grant permission to appeal against a High Court judge’s refusal of permission to appeal from a county court decision.
2. Costs. The jurisdictional bar did not extend to an appeal against a costs order made in those circumstances. Any such challenge would have had to show that the order fell outside the very wide ambit of the judge’s costs discretion. No separate appeal against the costs order was before the court.
3. Disclosure and Convention rights. The county court had exercised case-management powers directed to ensuring a fair trial and had given the claimant every opportunity to argue against disclosure. The order had been substantially agreed by counsel and the application to vary it was made out of time. General assertions based on articles 6 and 8 were insufficient because they were not tied to particular documents. If a document did not exist, an explanation could be provided. Objections based on relevance or excessive breadth were particularly weak in the circumstances.
4. Civil restraint order. Under the relevant provisions of the Civil Procedure Rules 1998, a finding that an application is totally without merit requires the court to consider whether a civil restraint order is appropriate. It does not require such an order in every case. Here, the renewed application bordered on the vexatious, proceeded despite a clear warning about the jurisdictional bar, and followed other meritless applications. A limited order was therefore appropriate.

1. Court of Appeal (Civil Division) — On 24 November 2015, the renewed application for permission to appeal was refused under [2015] EWCA Civ 1515, and a limited civil restraint order was made.
2. Chancery Division — Mr Fancourt QC, sitting as a deputy High Court judge, refused permission to appeal the relevant county court order and made a costs order on 6 November 2014.
3. Central London County Court — HHJ Gerald made the underlying unless and disclosure order on 8 November 2013.