Lloyd Dorian Williams v Gerwyn Lloyd Williams & Ors

A determination of an application for permission to appeal made on paper by a single Lord or Lady Justice is a judicial decision of the Court of Appeal and an order for the purposes of the Civil Procedure Rules 1998, rule 40.12. It may be corrected for an accidental slip, including on the court’s own initiative. Permission granted on specified grounds necessarily refuses permission on the others. The full court hearing the substantive appeal cannot reopen that refusal merely because oral renewal is unavailable. Reopening is possible only under rule 52.30, where real injustice, exceptional circumstances and no alternative effective remedy are established. That jurisdiction is confined to serious process failures, not a renewed argument on the merits of a refused ground.

The appellant’s claims concerning two farms were dismissed by the High Court, which also refused permission to appeal: [2022] EWHC 1717 (Ch). A Court of Appeal order initially appeared to grant permission on Grounds 3 and 5, but its reasons limited the permission to the beneficial ownership of Cefn Coed. The single Lord Justice subsequently clarified that the partnership-asset issue was excluded and corrected the order under the slip rule, so that no permission was granted on Ground 3.

The appellant sought review, arguing that permission on Ground 3 already existed or could be granted by the full court at the substantive appeal. The application also concerned the proposed replacement skeleton argument and the scope of any reopening jurisdiction.

Disposition. Nugee LJ, with Newey LJ agreeing, refused the appellant’s application to rely on Ground 3 and directed that it, or similar applications concerning refused grounds, could not be renewed at the substantive appeal.

1. Paper decisions and the slip rule. A single Lord or Lady Justice deciding a permission application on paper is exercising judicial power on behalf of the Court of Appeal. Under the Civil Procedure Rules 1998, the decision is an order within rule 40.12 and may be corrected by the court of its own motion for an accidental slip or omission. The court could not go behind Lewison LJ’s conclusion that the reference to Ground 3 was accidental. His corrected order therefore had to be read as granting permission only on Ground 5. Reliance on the passing remarks in Lane & Ors v Esdaile & Ors [1891] AC 210 did not alter that conclusion, since those remarks were not the grounds of decision and concerned different statutory provisions and procedural circumstances.
2. Finality of limited permission. An order granting permission on specified grounds is necessarily a refusal of permission on all other grounds. The determination is final. The full court hearing the substantive appeal cannot reopen a refusal or grant permission on a previously refused ground. The principle stated in McHugh v McHugh [2014] EWCA Civ 1671 continued to apply despite the 2016 removal of an automatic right to renew a paper refusal orally.
3. Exceptional reopening jurisdiction. Rule 52.30 applies to any final determination of an application for permission, including one granting some grounds and refusing others. It requires real injustice, exceptional circumstances making reopening appropriate, and no alternative effective remedy. The jurisdiction, deriving from Taylor v Lawrence [2002] EWCA Civ 90, is confined to serious process failures showing that the earlier decision was not a proper judicial decision, such as reading the wrong papers, bias or fraud. An argument that a refused ground has merit does not qualify.
4. Consequential directions. Permission to make the appellant’s oral rule 52.30 application was refused. The appellant could rely on his original skeleton argument, but only in relation to Ground 5 and not Ground 3, Ground 2 or any other refused ground.

• Court of Appeal (Civil Division) [2023] EWCA Civ 1465: refused the application to rely on Ground 3 and directed that refused grounds could not be renewed at the substantive appeal.
• Court of Appeal, single Lord Justice: permission was initially expressed to be granted on Grounds 3 and 5, but the reasons limited it to the beneficial interest in Cefn Coed. The partnership issue was later clarified as excluded, and the order was corrected under the slip rule.
• High Court of Justice, Chancery Division [2022] EWHC 1717 (Ch): dismissed the appellant’s partnership and proprietary estoppel claims and refused permission to appeal.