Patel v Mussa

The Court of Appeal’s residual jurisdiction applies where a statutory bar would otherwise prevent review of a High Court decision so fundamentally affected by procedural unfairness that it cannot be regarded as a proper decision. It does not extend to an equivalent county court decision because judicial review provides an adequate remedy.

Courts may impose sanctions, including striking out, for serious and unjustified procedural defaults without infringing article 6, provided that they exercise the power fairly. A severe case-management sanction remains lawful where it falls within the judge’s discretion after considering the seriousness of the breach, the absence of a good reason and the practical disruption caused.

The claimant sought permission from a circuit judge to appeal against a district judge’s refusal to enforce a compromise agreement contained in a Tomlin order. He filed the appeal bundle late and his skeleton argument on the morning of the hearing. His Honour Judge Ellis treated both defaults as non-trivial, applied the Mitchell principles and dismissed the application as a sanction.

The claimant appealed to the Court of Appeal, alleging procedural unfairness and a breach of article 6 of the European Convention on Human Rights. Permission was granted to consider whether the Court of Appeal’s residual jurisdiction could apply. The central questions were whether the circuit judge had refused permission on the merits or made an appealable case-management order, whether the residual jurisdiction extended to county court decisions, and whether the sanction was a proper exercise of discretion.

1. Appeal dismissed. Judge Ellis had not determined the application for permission to appeal on its merits. The references to Mitchell showed that he had disposed of it summarily as a sanction for procedural non-compliance. Although the order would more accurately have struck out the application, it was in substance an independently appealable case-management order. The residual jurisdiction was therefore not engaged.

2. The residual jurisdiction permits the Court of Appeal to review a High Court decision where statutory provisions would otherwise exclude appellate intervention and procedural unfairness has so undermined the decision that it cannot be regarded as a proper decision at all. It protects the integrity of the decision-making process rather than providing an appeal on the merits.

3. In any event, that jurisdiction did not extend to the challenged county court decision. A county court decision is amenable to judicial review in the exceptional circumstances identified in R (Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738. Judicial review therefore supplies an adequate procedure for remedying a denial of a fair hearing and securing compliance with section 9(1) of the Human Rights Act 1998. There was no gap requiring an extension of the residual appellate jurisdiction.

4. Article 6 permits courts to direct the efficient conduct of proceedings and to sanction non-compliance, including by striking out proceedings where appropriate. Such action is compatible with the right to a fair hearing when the power is exercised fairly. The relevant question was whether the circuit judge had exercised his discretion improperly.

5. The directions were straightforward and designed to give the judge adequate preparation time. The late bundle and skeleton argument made proper preparation practically impossible and risked adjournment, delay and disruption. Both defaults were serious, and no good reason had been given. Mitchell v News Group Newspapers [2013] EWCA Civ 1537, as refined by Denton v T.H. White Ltd [2014] EWCA Civ 906, endorsed rigorous compliance while requiring consideration of all the circumstances.

6. The sanction was severe, but appellate intervention did not depend on whether the Court of Appeal would have selected the same sanction. The question was whether dismissal was outside the range properly open to the judge. It was not. Lewison and King LJJ agreed with Moore-Bick LJ.

1. Court of Appeal (Civil Division): The appeal was dismissed. The circuit judge’s order was treated as an appealable case-management sanction rather than a refusal of permission on the merits. The residual jurisdiction did not apply, and the sanction was within the judge’s discretion: [2015] EWCA Civ 434.

2. County Court at Croydon, circuit judge: His Honour Judge Ellis dismissed the application for permission to appeal as a sanction for serious and unexplained failures to file a skeleton argument and hearing bundle in accordance with directions.

3. County Court at Croydon, district judge: District Judge Jackson dismissed the claimant’s application to enforce the compromise agreement contained in the schedule to a Tomlin order.