Quality Solicitors Harris Waters v Okonkwo

A refusal by a lower court to grant permission to appeal is not itself appealable where jurisdiction is excluded by Access to Justice Act 1999, section 54(4). For a first appeal, permission may be granted only where the proposed appeal has a real prospect of success or there is some other compelling reason for it to be heard. A real prospect requires an arguable basis that the lower court erred in law, made a material factual error, acted outside the permissible ambit of discretion, or committed a serious procedural irregularity. Complaints about enforcement conduct or the alleged fraud underlying an exhausted judgment do not ordinarily justify staying a writ of control.

The claimant solicitor firm obtained default judgment against the defendant for unpaid professional fees. The defendant’s application to set aside the judgment and stay enforcement was rejected by a deputy district judge. Subsequent applications for permission to appeal were refused on paper and then at an oral hearing by HHJ Ambrose, who also refused to stay the writ of control.

The defendant applied to the High Court for permission to appeal against HHJ Ambrose’s order. The application concerned both the refusal of permission to appeal against the deputy district judge’s order and the refusal to stay enforcement. The central issues were whether the High Court had jurisdiction to entertain the first challenge and whether any proposed appeal concerning the writ had a real prospect of success or another compelling basis for being heard.

1. The application for permission to appeal against paragraph (1) of HHJ Ambrose’s order was dismissed for want of jurisdiction. Under section 54(4) of the Access to Justice Act 1999, there is no appeal from a refusal of permission to appeal. The default judgment therefore stood.

2. The governing test for permission to bring a first appeal was CPR rule 52.6(1). Permission could be granted only if the appeal had a real prospect of success or there was some other compelling reason for it to be heard. A real prospect meant a real, rather than fanciful, prospect of persuading the appellate court that the lower court was wrong in law, made a material factual error, exercised its discretion outside the permissible ambit, or made an order unjust through serious procedural or other irregularity. The threshold was arguability, not proof that success was more likely than not.

3. None of the proposed grounds relating to the writ of control met that test. The use of different circuit judges for directions, paper consideration and the oral hearing was standard and caused no identified procedural disadvantage. Allegations concerning the enforcement officers were matters for the relevant complaints procedure or, if fraudulent conduct were established, the police; they did not affect the validity of the writ or justify a stay.

4. The allegation that the default judgment had been obtained by deception could not justify a stay because the defendant had exhausted her appeal rights concerning that judgment. The application for permission to appeal against both challenged paragraphs was therefore refused as wholly without merit.

5. The court considered whether to make a civil restraint order under CPR rule 23.12(b), but concluded that no such order was presently necessary because no other relevant application by the defendant had been identified as totally without merit.

• High Court (Queen's Bench Division): permission to appeal against HHJ Ambrose’s order dated 19 November 2019 was refused. The challenge to the refusal of permission to appeal was dismissed for want of jurisdiction, and the challenge concerning the writ of control was found wholly without merit.
• County Court: DDJ Billing refused to set aside the default judgment and to stay the writ of control on 24 April 2019. HHJ Ambrose later refused permission to appeal and refused a stay on 19 November 2019.