Mohammed Anwer v Central Bridging Loans Limited

An appeal lies against a judicial determination, decision, judgment, order or direction. A sealed order is not a condition precedent to seeking permission to appeal where the court has decided an issue or outcome. An appeal concerns that result, rather than an observation, finding or reason which does not affect it.

A request for a transcript, including a request that its cost be met at public expense, is not an “application” within a standard extended civil restraint order. It therefore requires no prior permission under that order. A publicly funded transcript remains subject to the separate requirement that its provision be in the interests of justice.

The appellant brought a county court claim alleging that his relationship with a bridging lender was unfair. After the claim was dismissed, he requested transcripts of pre-trial hearings, the trial and the judgment, with their cost met at public expense. The designated civil judge refused the request by a letter, reasoning that the appellant first required permission under an extended civil restraint order.

The Court of Appeal office initially declined to issue an appellant’s notice because there was no sealed order. Andrews LJ subsequently directed its issue so that the court could determine whether an appeal could be brought against a decision communicated informally by letter. The court also considered whether a transcript request was an application requiring permission under the restraint order and how the outstanding request should proceed.

1. The appeal was allowed on the two questions of principle. A sealed order was not required before the appellant could seek permission to appeal. The designated civil judge’s refusal, recorded in the clerk’s letter, was a determination under section 77 of the County Courts Act 1984. It decided an outcome adverse to the appellant and was therefore appealable.

2. An appeal must concern something which the judge has decided: a result, conclusion or outcome. It does not lie against an incidental observation, factual finding or reason which leaves the result wholly in the proposed appellant’s favour. The authorities establish that a formal order is not a condition precedent to appellate jurisdiction. Paragraph 3(3)(a) of Practice Direction 52C reflects usual practice, but cannot lawfully bar an appeal where no sealed order exists and an appealable determination has been made.

3. The request for transcripts at public expense did not require permission under the standard extended civil restraint order. A paying party is entitled to a transcript, while public funding depends on the interests of justice. Requiring separate permission under the restraint order would impose an additional merits hurdle only upon an impecunious litigant.

4. The restraint order’s principal purpose was to protect the opposing party from the time and expense of unmeritorious applications. The transcript request did not concern or affect that party. Requiring permission would also burden the court with potentially duplicative applications. The prescribed forms characterise the step as a “request”, not an “application”, and require no separate application notice. It therefore fell outside the order’s prohibition on claims and applications.

5. The merits of funding the requested transcripts had never been judicially considered. That issue was remitted to the High Court for determination. Any damages claim against the judge or Court of Appeal staff was legally unavailable because judges and court officials are not liable to litigants in damages or costs. The appellant was to bear his own appeal costs.

Coulson LJ gave the judgment. Birss LJ and Zacaroli J agreed.

1. Court of Appeal (Civil Division): The court allowed the appeal on the questions whether a sealed order was required and whether the transcript request required permission under the extended civil restraint order. It remitted the merits of public funding for the transcripts to the High Court: [2022] EWCA Civ 201.

2. Central London County Court: His Honour Judge Dight CBE refused the requests for transcripts at public expense by a decision communicated in a clerk’s letter dated 15 December 2020. He considered that the extended civil restraint order required prior permission and that the appeal court should determine public funding.