L. M. Associates Ltd v Gibbeson

A refusal of permission to appeal by a High Court judge, certified as totally without merit, cannot be converted into an appeal merely because the judge also bars an oral renewal hearing under CPR rule 52.4(3). That order is an integral part of the refusal of permission. Section 54(4) of the Access to Justice Act 1999 therefore bars an appeal to the Court of Appeal. The certification itself is not a judgment or order appealable under section 16(1) of the Senior Courts Act 1981. The rule gives the judge a discretion to allow an oral renewal hearing, and that safeguard should be considered. A truly exceptional reopening application remains the long-stop remedy.

L. M. Associates Limited obtained a County Court judgment against Howlett Estates Limited for unpaid professional fees and costs. After Howlett Estates entered voluntary liquidation, the claimant sought a non-party costs order against William Gibbeson, a director and shareholder. Her Honour Judge Hampton made the order against Mr Gibbeson and refused permission to appeal.

Griffiths J refused a further application for permission to appeal on paper, certified it as totally without merit and ordered that the decision could not be reconsidered at an oral hearing. Soole J stayed an application to reopen pending a ruling on jurisdiction. The central issue was whether the Court of Appeal could entertain an appeal against the order under CPR rule 52.4(3), notwithstanding section 54(4) of the Access to Justice Act 1999.

1. Jurisdiction. The application for permission to appeal was dismissed. Section 16(1) of the Senior Courts Act 1981 provides the general statutory jurisdiction to hear appeals from High Court judgments and orders, but section 54(4) of the Access to Justice Act 1999 removes an appeal against a decision to give or refuse permission to appeal, subject only to further applications permitted by the rules.
2. Totally without merit certification. Following R (Wasif) v Home Secretary [2016] EWCA Civ 82, a High Court judge’s recording that an application is totally without merit is not itself a judgment or order. It therefore cannot be appealed under section 16(1). Totally without merit means bound to fail. Certification is reserved for applications with no conceivable prospect of success, and judges should not certify lightly. The guidance in R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1091 was relevant.
3. Rule 52.4(3). The provision gives the judge a discretion to permit an oral renewal hearing even after certifying an application as totally without merit. That discretion is an important safeguard. It may be appropriate where the judge has doubt about certification or wishes to explore the history of earlier applications. Once the judge exercises the discretion to bar renewal, however, the order reinforces and forms an integral part of the refusal of permission. It does not create a separate right of appeal.
4. Earlier authority and reopening. Clark v Perks [2001] 1 WLR 17, concerning separate further orders such as costs orders or refusal of an adjournment, did not govern an order under rule 52.4(3). The court treated the exceptional reopening jurisdiction under rule 52.30 as a long-stop remedy, applying only where real injustice, exceptional circumstances and absence of an alternative effective remedy are established. The application was dismissed, and permission was given for the judgment to be cited.

• Court of Appeal (Civil Division): dismissed the application for permission to appeal and held that section 54(4) of the Access to Justice Act 1999 barred an appeal against the order preventing an oral renewal hearing under CPR rule 52.4(3).
• High Court: Griffiths J refused permission to appeal from the non-party costs order, certified the application as totally without merit and ordered that the decision could not be reconsidered at an oral hearing. Soole J stayed an application to reopen pending determination of the jurisdiction issue.
• County Court at Leicester: Her Honour Judge Hampton made a non-party costs order against William Gibbeson and refused permission to appeal.