JOHAN MICHAEL RICHARD FOENANDER v BOND LEWIS & CO [2001] EWCA Civ 759

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Astill J
[2001] EWCA Civ 759Case No Case No: PTA 2001/0571/B1Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Wednesday 23rd May 2001
Between
JOHAN MICHAEL RICHARD FOENANDERClaimant/ AppellantBOND LEWIS & CODefendant/ Respondent
Before
Lord Justice BrookeLord Justice SedleyLord Justice DysonMr Foenander appeared in personAlistair Craig (instructed by Beachcroft Wansbroughs for the Respondents)Date 23 May 2001

LORD JUSTICE BROOKE :

This

[1]application by a litigant in person raises an issue of general importance in relation to the new CPR appeals regime.[2]In January 1995 Mr Foenander issued a writ against Messrs Bond Lewis & Co, who are a firm of solicitors, and against Mr Florence O'Donoghue of counsel, alleging professional negligence in the conduct of the matrimonial proceedings which followed the breakdown of his marriage. The action against the Second Defendant was dismissed in April 1995 on the grounds of forensic immunity. On 1st October 1999 Deputy Master Chism struck out the claim against the first defendant ("the Chism order").[3]Under the former appeals regime Mr Foenander could appeal to a judge against a Master's order as of right provided his notice of appeal was given and served within five days (RSC Order 58 Rule 1). In the event he delayed for about two weeks, and on 11th November 1999 Astill J refused to make an order extending his time for appealing ("the Astill order"). Mr Foenander then had the right to seek permission to appeal to this court against the Astill order, provided that this application was made within four weeks (RSC Order 58 Rule 4). He did not exercise that right.[4]On 2nd May 2000 the new CPR appeals regime was introduced. This court has explained various aspects of the new regime on a number of occasions, and in particular in my judgments in Tanfern Ltd v Cameron-Macdonald [2000] 1 WLR 1311 and Clark v Perks [2001] 1 WLR 17 . The new appeals regime applies to all applications lodged at the appeal court on and after 2nd May 2000 ( Tanfern , para 47). Under the new regime there is no appeal as of right against a Master's order (CPR 52.3(1)(a): for the definition of the word "judge" see CPR 2.3(1)).[5]On 14th February 2000 the first defendants sent Mr Foenander their bill relating to the costs payable to them pursuant to the Chism order and the Astill order. On 31st October 2000 they obtained a default costs certificate in the sum of £9,713.77, and on 7th December 2000 Deputy Costs Judge Thum made an order refusing to set aside this certificate ("the Thum order"). Mr Foenander's application for permission to appeal against the Thum order was dismissed on paper by Mackinnon J on 11th January 2001 and in court by Owen J on 14th February 2001. Although he has sought to challenge the Thum order by a further application to this court, this court clearly has no jurisdiction to entertain this application under the new CPR appellate regime (Access to Justice Act 1999 ("the 1999 Act") s 54(4)). On 6th March 2001 Deputy Master Joseph ruled, correctly, that there was no further right of appeal to the Court of Appeal against the Thum order because Owen J had refused permission to appeal.[6]Within his Notice of Appeal against the Thum order Mr Foenander also sought an extension of time to lodge an application for permission to appeal out of time against the Chism order and the Astill order. The notice stated, among other things, that someone had impersonated Deputy Master Chism on 1st October 1999. Owen J rejected this allegation after seeing the original order which had been initialled that day, and after taking judicial notice of the practice whereby a Master's signature is compared with the stock signatures held in the Central Office before the order is stamped.[7]Mckinnon J dismissed this application on paper on the grounds that Mr Foenander had not sent out any explanation as to why he was now so many months out of time for appealing. On 19th January 2001 Mr Foenander purported to remedy this defect by swearing a long affidavit in which he described various features of the case going back to its inception. He attributed his failure to appeal against Astill J's order to the misconduct of solicitors he instructed "to appeal this case" on 15th October, nearly a month before Astill J made his order. On 14th February 2001 Owen J dismissed the application for an extension of time on the same grounds as McKinnon J, namely that there were no proper grounds on which an extension could be granted. He went on to say that he had no power to grant permission to appeal against his order because the Practice Direction to CPR Part 52 states (at para 4.8) that there is no appeal from a decision of an appeal court, made at an oral hearing, to allow or refuse permission to appeal to that court. This rule is of course derived from section 54(4) of the 1999 Act.[8]Owen J's order, which was sealed on 20th February 2001, provides that:
"1. The application for permission to appeal from the Order of Deputy Costs Judge Thum dated 7th December 2000 be and hereby is refused; 2. The application for an extension of time to appeal from: (1) the order of Deputy Master Chism dated 1st October 1999 and (2) the order of Mr Justice Astill dated 11th November 1999 be and hereby is refused."
[9]I am not surprised that the proceedings in the court below took a peculiar course, because as a lay litigant Mr Foenander had difficulty in identifying the appropriate procedure for the challenges he wished to make, but in fact neither McKinnon J nor Owen J had any power to extend the time for appealing against the Astill order. CPR 52.6(1) provides unequivocally that:
"An application to vary the time limit for filing an appeal notice must be made to the appeal court."
Needless to say, the attempt by Mr Foenander to obtain an extension of time for appealing against the Chism order was doomed because he had already sought and been refused this relief by Astill J.[10]On 28th February 2001 Mr Foenander lodged with this court a notice of appeal against the order of Owen J. He maintained on the face of the notice that he did not need permission to appeal against paragraph 2 of that order, and he set out his grounds for appealing against paragraph 1. The first of these contentions was clearly wrong (see CPR 52.3(1) which makes it obligatory to obtain permission to appeal against all decisions of a judge in the High Court, subject to exceptions which are irrelevant in the present case). I have already explained why this court would have no jurisdiction to entertain Mr Foenander's proposed challenge to paragraph 1 of Owen J's order (see paragraph 5 above).[11]In these circumstances the Civil Appeals Office notified Mr Foenander that it accepted his notice of appeal in so far as it related to the Astill order on the basis that the court might need to consider whether it had jurisdiction to entertain this appeal as a preliminary issue. In due course I directed that his application should be heard in court. I gave him notice that the court would wish to consider the status of this application under the new CPR appeals regime. Since the jurisdictional point was an important one, I elicited the assistance of a lawyer in the Civil Appeals Office who kindly prepared for Mr Foenander and for the court a bench memorandum explaining the legal issue we had to decide. We adopted the same technique in the Tanfern case (see paragraph 4 of that judgment). At the hearing today we also heard brief submissions from Mr Craig on behalf of the respondents.[12]The short issue we have to decide is this. If Astill J had refused Mr Foenander permission to appeal against the Chism order, this court would have no jurisdiction to entertain an appeal against that refusal (1999 Act, s 54(4)). Is the position different because he decided to refuse an extension of time for appealing, so that he did not consider the application for permission to appeal against the Chism order on the merits?[13]In the pre-CPR regime the answer to this question would have been very straightforward. In Rickards v Rickards [1990] Fam 194 a party to matrimonial proceedings in a county court failed to file his notice of appeal from a decision of a registrar within the prescribed time limit. A circuit judge refused his application for leave to appeal out of time, but granted him leave to appeal to this court from his order refusing an extension of time. This court had held in the earlier case of Podbery v Peak [1981] Ch 344 that it had no jurisdiction to entertain an appeal from a refusal to extend time for appealing. The court now held that that earlier decision had been made per incuriam . We are not concerned on this occasion with the reasons it gave for deciding that it was entitled not to follow the earlier case.[14]Lord Donaldson of Lymington MR considered at pp 199H-201C the effect of the decision of the House of Lords in Lane v Esdaile [1891] AC 210 on which the earlier decision has been based. He then said (at p 201C-G):
"In my judgment what Lane v Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant nor refusal of leave is an appealable decision. Although the statute contained time limits – 21 days in the case of interlocutory orders and 12 months in the case of other orders – no court had any power to extend them, nor, of course, was asked to do so. The effect of the expiry of those time limits was simply to attract a requirement for special leave to appeal. The grant or refusal of an application for leave to appeal is one thing. The grant or refusal of an application to extend the time limited for taking a step in proceedings, including but not limited to giving notice of appeal, is quite another. It arises in a multitude of contexts, none of which have even been held to be inherently unappealable, with the sole exception of an extension of time for appealing in Podbery v Peak [1981] Ch 344 and, following that decision, in Bokhari v Mahmood , Court of Appeal (Civil Division) Transcript No 323 of 1988. Whilst it is true that a right of appeal may be barred either by a refusal of an extension of time or by a refusal of leave, the routes by which this result is achieved and the underlying concepts are essentially different. The husband did not need leave to appeal to the judge in the county court. He needed an extension of time. He did not need an extension of time for appealing to this court. He needed, and obtained, leave to appeal."
[15]Lord Donaldson was making a distinction between the grant or refusal of an application for leave to appeal on the one hand and the grant or refusal of an application to extend the time limited for taking a step in proceedings on the other. The former, he said, was governed by Lane v Esdaile : the latter was as appealable (subject to the necessity of obtaining permission to appeal) as any other decision made by a judge.[16]The question we have to decide is whether this position has been affected by the introduction of the CPR regime. As I have already observed, section 54(4) of the 1999 Act prescribes that no appeal may be made against a decision of a court under that section to give or refuse permission, but it is silent in relation to decisions of the kind with which we are concerned in the present case. Prima facie (subject to the need to obtain leave to appeal) an appeal lies to this court pursuant to Section 16(1) of the Supreme Court Act 1981 (as amended) which provides that:
"(1) Subject as otherwise provided by this or any other Act or as provided by any order made by the Lord Chancellor under section 56(1) of the Access to Justice Act 1999, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court."
[17]Under the CPR appellate regime, an appeal from a decision of a High Court judge lies to this court, as I explained in paragraph 15 of my judgment in Tanfern . The position is now set out clearly in paragraph 2A.1 of the Practice Direction to CPR Part 52. This is not a second appeal within the meaning of Section 55(1) of the 1999 Act because the "matter" on which Astill J gave judgment ( viz whether to extend time for an appeal against the Chism order) is different from the "matter" on which Deputy Master Chism made his ruling ( viz whether the action against the Second Defendants should be struck out).[18]The principle which underlies the rule in Lane v Esdaile (which was recently reaffirmed by the House of Lords in R v Secretary of State for Trade and Industry ex p Eastaway [2000] 1 WLR 2222 ) and in section 54(4) of the 1999 Act (insofar as it refers to the refusal of leave to appeal) is that if both a lower court and an appeal court at a lower level of the judicial hierarchy have decided that a proposed appeal has no real prospect of success, and that there is no other compelling reason why the appeal should be heard (see CPR 52.3(6)), that must be the end of the matter, and this issue cannot be relitigated higher up the judicial chain. This principle does not, however, in my judgment apply to an order of the type made by Astill J on 11th November 1999. He decided, in the exercise of his discretion, not to extend time for an appeal from the deputy master's decision. Nobody else had considered, or had the power to consider (see CPR 52.6(1)) this exercise of discretion, and in those circumstances, provided that permission to appeal is granted, Astill J's order is as appealable to this court as any other order made by a High Court judge.[19]The logic of this decision is that if a circuit judge or a High Court judge sitting in an appeal court has the choice of disposing of a belated and unmeritorious appeal either by refusing to extend time for appealing or by refusing permission to appeal, he/she should bear in mind that taking the latter course will bring the appellate proceedings to an end. The adoption of the former course, on the other hand, may entail further expense and delay while a challenge is launched at a higher appeal court against the decision not to extend time for appealing.[20]Before I end this judgment, I would like to correct an error I made when describing the destination of appeals under the CPR appellate regime in paragraph 54 of my judgment in Clark v Perks [2001] 1 WLR 17 . I said:
"It does not now matter whether a decision by a district judge on an assessment of damages was made in the county court or in the High Court. Appeal against such a decision will lie to a circuit judge unless the case was allocated to the multi-track, in which case it will lie to this court."
[21]It has been pointed out to me, correctly, that an appeal from a district judge on an assessment of damages in the High Court will ordinarily lie to a High Court judge, not a circuit judge. Paragraph 54 of that judgment must now be read subject to this gloss. LORD JUSTICE SEDLEY:[22]I agree.

LORD JUSTICE DYSON:

[23]I agree.

ORDER

Permission to rely on further evidence; listed for tomorrow before Lord Justice Brooke. (Order does not form part of approved Judgment)

Cited in 5 later judgments