Natasha Sivanandan v Capstone Foster Care Ltd & Ors

The power to reopen a final determination of an appeal, including a refusal of permission to appeal, is an exceptional residual jurisdiction. It requires exceptional circumstances, a powerful probability of significant injustice, no alternative effective remedy, and a powerful probability that the earlier decision would have been different if the integrity of the process had not been critically undermined. The jurisdiction is not a second appeal on the merits. Errors in reasoning, evidential assessment, case management, costs, or judicial demeanour will not ordinarily suffice where the decision-maker engaged with the substance of the case and the alleged error could not have affected the result.

The applicant’s underlying claims concerned the refusal of her application to become a foster carer and alleged discrimination, breaches of the Human Rights Act 1998 and negligence. The negligence claim was struck out, and the remaining claims were dismissed after trial. Permission to appeal was refused, including because some grounds were out of time.

Mr Justice Sheldon later refused permission to appeal and declined to extend time. The applicant sought to reopen that final determination under CPR 52.30 and Practice Direction 52A, paragraph 7. She alleged errors concerning Article 6, discrimination evidence, lay assessors, costs, and the conduct and conditions of the county-court trial. The central issue was whether those matters critically undermined the integrity of the permission process and created a powerful probability of a different outcome.

1. Application refused. The requirements of CPR 52.30 were not met. The applicant had to establish exceptional circumstances, a powerful probability of significant injustice, the absence of an alternative effective remedy, and a powerful probability that the earlier decision would have been different if the process had not been critically undermined.
2. The Article 6 issue did not justify reopening. Although the permission judgment referred to the wrong Cornerstone decision, its substantive conclusion was stated independently: there was a right to apply to become a foster carer, but no domestic-law right to appointment, so the refusal did not determine a civil right for Article 6 purposes. The underlying trial judge had also considered procedural fairness in the alternative.
3. The error concerning an email potentially supporting victimisation did not meet the threshold. The permission judge had engaged with the email and concluded that, even if it supported an inference requiring rebuttal, the trial judge’s findings showed that protected acts had not caused the decision. Reopening could not be used to reargue factual findings or the application of law to facts.
4. The refusal to extend time for the lay-assessor ground was an evaluative case-management decision supported by reasons. The applicant had known of the absence of assessors before trial and had not acted promptly. Section 114(7) of the Equality Act 2010 creates a rebuttable presumption in favour of lay assessors, but the delay and resulting prejudice justified refusing an extension.
5. The costs complaints and alleged procedural unfairness did not show critical impairment of the litigation process. The permission judge had addressed the late costs statement and imposed a proportionate reduction. Complaints about costs discretion, hearing management, heat, breaks, cross-examination, impatience, or demeanour did not approach the paradigm cases of fraud, bias, corruption, or reliance on wholly wrong papers.

The judgment was a first-instance determination of an application to reopen a final permission decision. The underlying claims were tried in the county court; permission to appeal was refused by the trial judge and subsequently by Mr Justice Sheldon on 11 July 2024. The present application to reopen that decision was refused.