Ghassemian v Chatsworth Court Freehold Company Ltd & Ors

An appeal court’s power under the Civil Procedure Rules is confined to the matter actually under appeal. Rule 52.10 is not a general power to grant interim relief in separate proceedings. Where the order giving rise to a proposed appeal has been set aside, no extant appeal or order remains on which interim relief can be based. The Court of Appeal must determine the procedural issue before it and should not express views on merits which it has not heard.

The appellant sought to challenge orders for the sale and possession of his mother’s apartment, asserting that he was a regulated tenant protected by the Rent Act 1977. A County Court judge refused permission to appeal and made a civil restraint order. Barling J later purported to reopen the refusal of permission under CPR rule 52.17, granted limited permission on the regulated-tenancy issue, and refused interim relief allowing reoccupation.

Newey J subsequently set aside Barling J’s order under CPR 3.1(7), holding that it had been made without jurisdiction. The appellant applied to the Court of Appeal for permission to appeal against the refusal of interim relief and separately invited the court to grant interim relief under CPR rule 52.10. The central issue was whether any live appeal or appellate jurisdiction remained after Barling J’s order had been set aside.

Application refused. Lady Justice Black gave the principal judgment, with Lord Justice Briggs agreeing and adding a short observation.

1. Newey J had revoked the permission to appeal granted by Barling J under CPR 3.1(7). The order had been treated as made without jurisdiction because CPR rule 52.17 did not apply to appeals to the County Court. Even if Barling J had been sitting as a County Court judge, he lacked power to reopen the refusal of permission. His order was therefore a nullity.
2. The provision refusing interim relief was dependent on the permission to appeal. Once that permission had been set aside, the regulated-tenancy appeal had ended and there was no extant order or appeal which the Court of Appeal could consider. The application for permission to appeal against Barling J’s order therefore had to be dismissed.
3. CPR rule 52.10, including rule 52.10(1), gives the appeal court the powers of the lower court in relation to an appeal. It does not confer a general power to grant interim relief. The rule could not be used in relation to the separate civil restraint-order appeal, which was not before the Court of Appeal, or to support new High Court proceedings which had not reached that court.
4. The court declined to hear submissions on the merits of the regulated-tenancy issue or the new proceedings. It expressed no view on those merits. The appellant remained able to seek interim relief in the High Court, subject to the undertaking preventing sale contracts from being exchanged before 3 February. Briggs LJ also declined to express a final view on the differing procedural approaches of Barling J and Newey J.

The final order was: “Application refused.”

• Court of Appeal (Civil Division) — dismissed the application for permission to appeal against Barling J’s order and declined to grant interim relief.
• High Court, Chancery Division — Barling J granted limited permission to appeal on the regulated-tenancy issue but refused interim relief. Newey J later set aside that order under CPR 3.1(7) as made without jurisdiction.
• Central London County Court — District Judge Silverman made the sale and possession orders. Judge Mitchell refused permission to appeal and later dismissed the application to set aside the possession order.