Linda Hamer v Hesther Levy

An appeal from a circuit judge’s decision striking out an appeal from a district judge is a second appeal where the circuit judge made the decision after hearing the first appeal. The classification is not changed because the first appeal was struck out as hopeless rather than dismissed after a full hearing. Such a further appeal lies exclusively to the Court of Appeal and is subject to the enhanced second-appeal permission test. A case-management order striking out an appeal remains appealable, but the appeal must be directed to the Court of Appeal.

The respondent landlord obtained a possession order against the appellant tenant under section 21 of the Housing Act 1988. The appellant’s first appeal to a circuit judge was struck out after the judge concluded that it had no real prospect of success. She then sought to appeal that order to the High Court.

The High Court had previously struck out the appeal for want of jurisdiction without a hearing. The appellant applied to set that order aside, arguing that the circuit judge’s strike-out was not a final decision and that the appeal was therefore a first appeal to the High Court. The central issue was whether the circuit judge’s order was a decision made on hearing an appeal, making the further appeal a second appeal.

1. The application to set aside the earlier order was dismissed. The appeal from the circuit judge’s order lay to the Court of Appeal, so the High Court had no jurisdiction. The stay imposed by Judge Berkley was lifted with immediate effect.

2. The distinction relied on from the revoked Access to Justice Act 1999 (Destination of Appeals) Order 2000 was no longer applicable. The Access to Justice Act 1999 (Destination of Appeals) Order 2016 had removed the former distinction between final decisions in multi-track Part 7 claims and other county court decisions.

3. Since 2016, appeals from a circuit judge sitting in the county court ordinarily lie to the High Court, subject to stated exceptions. However, where the circuit judge’s decision was itself made on hearing an appeal, the further appeal lies to the Court of Appeal under section 55(1) of the Access to Justice Act 1999, article 6 of the 2016 Order and rule 52.7(1) of the Civil Procedure Rules 1998.

4. A decision of a circuit judge refusing permission to appeal a district judge’s decision is not appealable because section 54(4) of the 1999 Act removes a right of appeal from refusal of permission. In limited circumstances, the refusal may instead be challenged by judicial review.

5. An order striking out an appeal is a case-management decision. That characterisation is not altered merely because the strike-out is based on the conclusion that the appeal has no prospect of success, rather than on non-compliance with directions. Where the judge has made that case-management decision after hearing the first appeal, the resulting challenge is nevertheless a second appeal.

6. The second appeal is subject to the more stringent test in rule 52.7(2): the Court of Appeal must be satisfied that the appeal has a real prospect of success and raises an important point of principle or practice, or that there is some other compelling reason for it to be heard.

1. County Court at Torquay and Newton Abbot: District Judge Priddis made a possession order and awarded costs against the tenant.

2. County Court: His Honour Judge Mitchell struck out the tenant’s first appeal after considering oral and written submissions.

3. High Court, King's Bench Division: The High Court dismissed the application to set aside its earlier strike-out order, holding that any further appeal lay only to the Court of Appeal.