HMG Investment Holdings Ltd v National Westminster Bank Plc

The jurisdiction to reopen a refusal of permission to appeal under Civil Procedure Rules 1998, rule 52.30 is exceptional and tightly confined. It requires a probable significant injustice that has critically undermined the integrity of the earlier litigation process. Even then, there must be a powerful probability that the underlying decision was wrong. The test is not relaxed because permission was refused on paper. Reasons for refusing permission need not answer every submission seriatim, but must adequately explain the refusal on each ground and address the essential issues. A reopening application cannot be used to reargue a failed permission application or to correct an alleged error in the underlying decision.

HMG Investment Holdings alleged that National Westminster Bank had made a representation that a proposed Geared Collar would reduce its overall risk. Robin Knowles J dismissed the claim on 17 December 2018, finding that the representation had not been made and that the relevant statement concerned the reduced impact of breaching the floor.

The applicant sought permission to appeal. Lord Justice Flaux refused permission on paper on 28 February 2019, concluding that the proposed appeal had no real prospect of success. The applicant then applied under Civil Procedure Rules 1998, rule 52.30 to reopen that refusal, alleging that the reasons had failed to address its arguments. The central issue was whether any failure in the permission decision had critically undermined the integrity of the appellate process.

The application to reopen the refusal of permission to appeal was refused.

1. The jurisdiction under Civil Procedure Rules 1998, rule 52.30 is exceptional and subject to a narrow and stringent test. Following Goring-On-Thames Parish Council, R (on the application of) v South Oxfordshire District Council & Anor [2018] EWCA Civ 860; [2018] 1 WLR 5161, it requires a significant injustice probably to have occurred so that the integrity of the earlier litigation process was critically undermined or corrupted. Whether the underlying decision was wrong is secondary. Even where the process has been vitiated, reopening requires a powerful probability that the decision was wrong.
2. The test is not relaxed where permission has been refused on paper under rule 52.5. The paper procedure does not create a default route for challenging a refusal. The jurisdiction is not a means of rearguing a lost permission application merely because the applicant considers that the single judge was wrong, as confirmed in Barclays Bank plc v Guy [2010] EWCA Civ 1396; [2011] 1 WLR 681.
3. Reasons for refusing permission need not be lengthy or answer every submission seriatim. They must, however, adequately explain the refusal on each ground and address the essential issues. The reasons given here explained that the judge below had correctly understood the conversation as referring to the increased risk of breaching the floor but the reduced impact of such a breach.
4. The challenge to subsidiary factual findings did not show any likely effect on the result. Nor did the judge’s decision not to address issues that did not arise after the misrepresentation claim failed undermine the correctness of the critical finding. The applicant’s further arguments were substantive reargument and did not satisfy the rule 52.30 test.

• Court of Appeal (Civil Division) — Lord Justice Flaux refused the application to reopen the paper refusal of permission to appeal under Civil Procedure Rules 1998, rule 52.30: [2019] EWCA Civ 1187.
• Court below — Robin Knowles J dismissed HMG Investment Holdings’ claim by an order dated 17 December 2018.