Wingfield, R (on the application of) v Canterbury City Council & Anor

A final appellate determination may be reopened under CPR 52.30 only in truly exceptional circumstances. The applicant must show real and grave injustice, no alternative effective remedy, a critical undermining of the earlier process, and a powerful probability that the result would otherwise have been different.

A renewed application which merely repeats grounds already rejected will almost invariably fail. A court need consider a complaint about refusal of permission to appeal only if the judge failed to grapple with a clearly articulated issue, or made an exceptional error that corrupted the process. A requested reference to the CJEU is unnecessary where the proposed EU-law question cannot affect the outcome.

The applicant sought judicial review of Canterbury City Council’s planning decisions concerning separate housing developments at Hoplands and Chislet, near protected European sites. Lang J dismissed the claims or refused permission on the remaining grounds: [2019] EWHC 1974 (Admin) and [2019] EWHC 1975 (Admin).

Lewison LJ refused permission to appeal and later refused the applicant’s first applications under CPR 52.30 to reopen those refusals. The applicant then made renewed applications to reopen, relying substantially on alleged errors of EU law and an asserted failure to refer questions to the CJEU.

The central issue was whether the exceptional conditions for reopening a final appellate determination were met, particularly after an earlier CPR 52.30 application had been refused.

1. The renewed applications were dismissed. They repeated grounds already considered and rejected. Although the court held that it had jurisdiction in theory to entertain a second application, such an application would almost inevitably require different grounds and would be still harder to justify.

2. The court applied the restrictive requirements of CPR 52.30, as explained in Taylor v Lawrence [2002] EWCA Civ 90 and R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860. Reopening requires exceptional circumstances, real and grave injustice, no alternative effective remedy, a critical undermining of the earlier process, and a powerful probability of a different outcome. Mere legal error, fresh evidence, importance of the issue, or an asserted need to correct precedent is insufficient.

3. The appropriate inquiry into an allegation that permission to appeal was wrongly refused has two stages. The court first asks whether the judge grappled with the issues raised. If so, it asks whether an exceptional mistake, such as a wholesale failure to understand a clearly articulated point, corrupted the process and probably changed the result.

4. Lewison LJ had engaged with the grounds in both cases. His small correction concerning Larkfleet was irrelevant. His conclusions that the outline-permission decision would inevitably have been the same, that the developments were separate projects, and that unpleaded grounds could properly be excluded, were fatal to the proposed appeals.

5. No reference to the CJEU was required. Under Article 267, a national court decides whether a preliminary ruling is necessary to determine the matter before it. The suggested EU-law questions were irrelevant to the outcome, concerned application rather than interpretation, or were precluded by the applicant’s pleaded case and the lawful case-management ruling.

6. EU law did not displace finality. Even an arguable infringement of EU law would not itself establish the exceptional injustice required by CPR 52.30. There was no critical procedural failure and no probability of a different result. The applications failed every relevant criterion.

• Court of Appeal (Civil Division): renewed CPR 52.30 applications dismissed in [2020] EWCA Civ 1588 .
• Court of Appeal (Civil Division): Lewison LJ refused permission to appeal and refused the first applications to reopen those refusals.
• Planning Court: Lang J dismissed the Hoplands judicial-review claim or refused relief in [2019] EWHC 1974 (Admin) , and dismissed the Chislet claim or refused permission on its remaining grounds in [2019] EWHC 1975 (Admin) .