CCP Graduate School Ltd v The Secretary of State for Education

Applications for permission to appeal and for an extension of time may be dealt with by the lower court at the hearing at which the substantive decision was made or at an adjournment of that hearing. Whether a later hearing is an adjournment depends on the true construction of the court’s earlier order, read in its factual context and in light of the judge’s intention.

Permission to appeal requires prospects greater than fanciful, but the threshold remains low. An abuse-of-process decision involving a broad merits-based evaluation will generally be challengeable only if it falls outside the permissible range of reasonable conclusions. Where failure on one ground would necessarily sustain the judgment, permission may be refused despite possible prospects on other grounds.

The claimant sought permission to appeal from an earlier substantive judgment and an extension of time for filing an appellant’s notice. The substantive judgment had been delivered orally on 16 June 2023. The court had adjourned consequential matters, including permission to appeal and time for appealing, to a later hearing. That hearing was eventually listed for 29 January 2024.

The Secretary of State initially disputed the court’s jurisdiction but withdrew that objection. The court therefore considered whether the present hearing was an adjournment within the meaning of the Civil Procedure Rules, whether permission to appeal should be granted, and what period should be allowed for filing an appeal notice.

1. Jurisdiction. Under Civil Procedure Rules rules 52.3(2) and 52.12(2)(a), an application for permission to appeal and a direction extending time must be made to the lower court at the hearing at which the decision was made or at an adjournment of that hearing. The true construction of the earlier order showed that the hearing on 29 January 2024 was an adjournment, not a new hearing. The court therefore had jurisdiction.
2. The conclusion was supported by the words used on 16 June 2023, the time pressures which led to the adjournment, and the reference to the judge’s usual hand-down order. The court also relied on its inherent power under paragraph 4 of Practice Direction 40B to make its meaning and intention clear.
3. Permission to appeal. Under rule 52.6(1), permission could be granted only if the appeal had a real prospect of success or there was another compelling reason. Some proposed grounds concerning the 1999 Act, the student contract argument and limitation might have prospects. However, the decisive abuse-of-process ground did not. The court had applied the two-stage analysis: whether there was an abuse, followed by a broad merits-based evaluation of whether striking out was appropriate in all the circumstances.
4. The court had considered the late and unsuccessful attempt to introduce the counterclaim in the earlier proceedings, the parties’ positions, and the relevant procedural history. Its conclusion fell within the permissible range of reasonable evaluations. If that conclusion stood, the claim necessarily remained struck out. Permission to appeal was therefore refused.
5. Time for appealing. The court directed that an appeal notice be filed within 21 days from 29 January 2024. A shorter period would have been inconsistent with the earlier adjournment scheme, the need to know the costs position, and the overriding objective in rule 1.1.