Michael Wilson & Partners Ltd v JF Emmott & Ors

Under CPR 52.30, reopening a final appellate determination requires three cumulative conditions: reopening must be necessary to avoid real injustice, the circumstances must be exceptional, and there must be no effective alternative remedy. A probable failure to read relevant papers is insufficient unless the earlier process was critically undermined and a different result was powerfully probable. Reopening is unnecessary where identical claims have been finally determined in fresh proceedings, or viable claims can be pursued by another route. A court may maintain a strike-out where a claimant issues a fundamentally irregular claim, resists correction despite opportunities, and suffers no material prejudice from starting again.

Michael Wilson & Partners Ltd applied under CPR 52.30 to reopen an appeal for which Males LJ had refused permission on paper on 10 December 2021. The proposed appeal challenged HHJ Pelling KC’s order of 20 July 2021, which refused to set aside an own-motion strike-out of a claim form issued under an existing claim number, with an incorrect fee and further procedural defects.

The applicant argued that the Court of Appeal had failed to consider its supplementary skeleton argument and that the strike-out was disproportionate. The respondents relied on the later 532 proceedings, involving materially identical claims, which were struck out or met by summary judgment: [2022] EWHC 1481 (Comm). The central issue was whether the final determination should be reopened to avoid real injustice, including to permit proposed addendum and costs claims.

Andrews LJ, with Baker LJ agreeing, dismissed the application to reopen and certified it as totally without merit.

1. CPR 52.30 imposes three cumulative requirements. Reopening must be necessary to avoid real injustice, the circumstances must be exceptional, and there must be no effective alternative remedy. The governing principles were identified by reference to Municipio de Mariana and others v BHP Group Plc and another [2021] EWCA Civ 1156; [2022] 1 WLR 919. A failure to read relevant papers may engage the jurisdiction, but it is insufficient without critical undermining of the earlier process and a powerful probability of a different result.
2. Males LJ had addressed the essential challenges to the strike-out order and given sufficient reasons for refusing permission. The supplementary skeleton argument refined the proposed case but could not properly amend the grounds of appeal or introduce new grounds. The failure to read it therefore did not justify reopening.
3. Even assuming permission to appeal had been granted, the appeal would have failed. The first-instance judge was entitled, as a matter of robust case management, to maintain the strike-out of a fundamentally irregular claim where MWP had used an existing claim number for a new claim, paid the wrong fee, resisted correction, had been given opportunities to rectify the position, and suffered no material prejudice from issuing afresh.
4. The later 532 proceedings supplied an effective alternative remedy and involved materially identical claims. Their outcome meant that reopening the earlier appeal was unnecessary and would expose the respondents to renewed vexatious litigation. The proposed addendum claim, if viable, could be brought in fresh proceedings with the necessary permission under the Extended Civil Restraint Order. The proposed costs recovery claim could likewise be pursued separately or through an inquiry as to damages; it also arose after the second 804 claim form was issued and could not in principle be introduced by amendment. Any restitution or debt claim based on costs orders was properly directed against Mr Emmott, not these respondents.

• Court of Appeal (Civil Division) — Males LJ refused permission to appeal on paper on 10 December 2021. Andrews LJ, with Baker LJ agreeing, dismissed the CPR 52.30 application to reopen and held that the proposed appeal would in any event have been dismissed.
• High Court of Justice, Commercial Court — On 20 July 2021, HHJ Pelling KC refused MWP’s application to rescind, set aside, vary or stay the 9 June 2021 own-motion strike-out of the second 804 claim form, treating the application as totally without merit.