Handley & Anor v Lake Jackson Solicitors (a firm) & Ors

The Court of Appeal considered the correct destination for appeals where a county court has itself decided an appeal and has also made (or refused) orders as to costs. The court interpreted section 55 of the Access to Justice Act 1999 together with Article 5 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000 and CPR 52.13. It held that where a county court judge has heard an appeal from a lower court and made decisions "on hearing the appeal" (including decisions as to costs), any appeal from those decisions lies to the Court of Appeal. Permission for such a second appeal must be sought from the Court of Appeal and the higher threshold in section 55/CPR 52.13 applies to the substantive second appeal; however, an appeal concerned only with the county court's costs decision (which will often not have been previously reviewed) is nonetheless routed to the Court of Appeal but should not be unduly restricted by the second-appeal filter. By contrast, where the county court has not in law "heard the appeal" (for example the appeal was dismissed following the appellant's withdrawal), any appeal (usually about costs) lies to the High Court. The court applied those principles to three appeals before it and granted permission in two limited respects while refusing permission in one.

Background and procedural posture:

• This judgment resolves the question of the proper appellate destination and the application of the "second appeals" threshold where a county court has determined an appeal and also made orders as to costs. Three separate matters were considered together: (i) Christie Owen & Davies Ltd v Awan & Awan (appeal from Oxford County Court, HHJ Tolson QC); (ii) Lopes v London Borough of Croydon (appeal from Central London County Court, HHJ Bailey); and (iii) Handley v Lake Jackson (appeal from the Mayor's and City of London Court, HHJ Birtles).

Nature of the applications: The applications concerned permission and destination for appeals (whether to the Court of Appeal or the High Court) and whether the higher threshold in section 55 of the Access to Justice Act 1999 (the "second appeals test") and CPR 52.13 applied to appeals against costs orders made by county court judges on appeals.

Issues framed by the court:

• How should "on hearing the appeal" and "in relation to that matter" in section 55 and the Destination Order be construed?
• Does the second appeals test apply to appeals against costs orders made by a county court hearing an appeal?
• Which appellate court is the correct destination in each of the three cases?

Reasoning and holdings on the issues:

• The court preferred a construction of section 55 which confines the second-appeal filter to decisions of the county court on the substance of the appeal from the lower court (i.e. the validity of the district judge's decision). Article 5 of the Destination Order, however, is expressed in wide terms and designates the Court of Appeal as the destination for decisions made by county courts "on hearing the appeal". Article 5 therefore applies where a county court judge has in fact heard the appeal and made decisions (including as to costs) as a result of that hearing.
• Where a county court has heard the appeal and decided the issues, any appeal (including one about the county court's costs decisions) lies to the Court of Appeal; permission must be sought from that court and the second-appeal test will apply to substantive issues arising from the county court's determination. The court emphasised that this routing should not unduly restrict appellate review of costs decisions which, if brought to the Court of Appeal, will often be original decisions not previously reviewed.
• Where there has not been a hearing of the appeal (for example a dismissal following withdrawal), the appeal (almost certainly about costs) lies to the High Court.

Application to the three cases:

• Christie Owen & Davies v Awan & Awan — Judge Tolson heard the restored appeal and made decisions including costs; Article 5 applied and the appeal lies to the Court of Appeal. The court granted permission to appeal in respect of specified paragraphs of the order of 27 July 2015 (challenging certain costs-related provisions).
• Lopes v Croydon — the appeal had been withdrawn by consent and Judge Bailey did not hear the appeal; the costs decision followed withdrawal and not a hearing. The appeal (on costs) therefore lies to the High Court; the Court of Appeal remitted the matter to the High Court and granted permission to appeal there.
• Handley v Lake Jackson — Judge Birtles heard the appeal and ordered payments including a summary costs award and an interim payment; Article 5 applied and the appeal would lie to the Court of Appeal but Lake Jackson had no realistic prospect and permission to appeal was refused.

Legal significance: The judgment clarifies the routing of appeals involving costs made by a county court on an appeal and reconciles section 55/CPR 52.13 with the Destination Order, avoiding an anomalous bifurcation of appellate routes and ensuring proper appellate oversight of both substantive second appeals and consequential costs orders.

Allowed in part. The court held that where a county court judge has "heard the appeal" and made decisions (including as to costs) those appeals lie to the Court of Appeal under Article 5 of the Destination Order; permission to bring a second appeal on substantive issues requires satisfaction of the section 55/CPR 52.13 test, but appeals about the county court's costs decisions (which are often original decisions) are nonetheless routed to the Court of Appeal and should not be unduly constrained by the second-appeal filter. Applied to the three cases: permission to appeal was granted in Christie Owen & Davies Ltd v Awan & Awan (limited to specified paragraphs); Lopes v Croydon was remitted to the High Court for permission (because the appeal had been withdrawn and not heard); permission to appeal in Handley v Lake Jackson was refused.

On appeal to the Court of Appeal from three county-court level decisions: (i) Christie Owen & Davies Ltd v Awan & Awan — on appeal from Oxford County Court (HHJ Tolson QC) following a restored appeal and an earlier High Court decision (Mitting J) remitting the case; (ii) Lopes v London Borough of Croydon — on appeal from Central London County Court (HHJ Bailey) where a consent order permitted withdrawal of the section 204 appeal; (iii) Handley v Lake Jackson — on appeal from the Mayor's and City of London Court (HHJ Birtles) with related interlocutory steps and transfer from the High Court in relation to jurisdiction. Some matters had been transferred between the Civil Appeals Office, High Court and Court of Appeal as set out in the judgment.