Southern Housing Group Ltd v Kontou

Permission for a second appeal requires a real prospect of success and, in addition, an important point of principle or practice or another compelling reason for the Court of Appeal to hear it. A challenge to the substance of an earlier consent order cannot be advanced indirectly through an appeal against a later procedural order. Where a judgment is alleged to have been procured by fraud, the appropriate course is a fresh action to set it aside. Alleged negligence or unauthorised conduct by former legal advisers is ordinarily pursued separately. The slip rule permits correction of an order that was incorrectly drawn.

The appellant sought permission for a second appeal from an order of the County Court sitting at Clerkenwell and Shoreditch. The order dismissed her appeal against the striking out of a counterclaim in a possession and rent-arrears claim, corrected an earlier order under the slip rule, and recorded that permission to appeal an earlier consent order had not been granted.

The counterclaim sought to challenge the earlier possession proceedings and alleged that the consent order had been obtained by deception or fraud. That order recited that ground 9 of Schedule 2 to the Housing Act was established and that suitable alternative accommodation was available. The central issues were whether the later appeal could reopen those matters and whether a further appeal should be permitted.

1. Permission refused. The proposed appeal had no real prospect of success and did not satisfy the second-appeal requirement of raising an important point of principle or practice, or another compelling reason for the Court of Appeal to hear it.
2. The counterclaim had been limited by the order of 16 July 2013 to matters concerning the current tenancy and property. That limitation was not revoked when permission to appeal was granted on the first appeal; only the expert-evidence directions in paragraphs 6 to 11 were revoked. Since the counterclaim did not comply with the surviving limitation, its striking out was inevitable.
3. The correction to the order of 30 January 2014 was proper. The wording that permission to appeal the earlier order had been granted was grammatically defective and contradicted the procedural record: no permission had been granted or sought. Under CPR Part 40.12, the court had ample power to correct the incorrectly made order.
4. The appellant’s allegations that the earlier consent order had been procured by fraud, or that her former legal advisers had acted without authority, did not provide grounds for the proposed second appeal. A negligence claim against the advisers was the usual remedy for professional wrongdoing. An allegation that a judgment was procured by fraud could be pursued by a fresh action to set it aside, in which the underlying grievances could be examined. Those routes were not encouragingly described, because formidable obstacles appeared to exist, but the grievances could not be ventilated through this second appeal.

• Court of Appeal (Civil Division): permission to bring a second appeal was refused.
• County Court sitting at Clerkenwell and Shoreditch: on 6 February 2014, His Honour Judge Mitchell dismissed the appellant’s appeal against the order striking out her counterclaim, ordered costs, corrected the earlier order, and gave judgment for rent arrears.
• County Court: District Judge Parker struck out the counterclaim on 12 November 2013. On 30 October 2013, Judge Mitchell had allowed an earlier appeal only to the extent of revoking paragraphs 6 to 11 of the order of 16 July 2013; the limitation of the counterclaim remained.