By Emma Dring
In a judgment that will be of importance to all civil practitioners, the Court of Appeal has confirmed the very limited scope of its jurisdiction to re-open permission decisions and confirmed that this remains the case notwithstanding that there is no longer a right to oral renewal after permission has been refused on the papers.
The power to re-open permission decisions
Since 3 October 2016, parties who are refused permission to appeal to the Court of Appeal on the papers have not been entitled to renew their application at an oral hearing. The removal of this right (previously contained in CPR 52.5) means that, for disappointed litigants, a paper refusal from the Court of Appeal is almost always the end of the road.
Since then, some practitioners have been looking for alternative ways to persuade the Court of Appeal to reconsider permission decisions, ideally at an oral hearing. Applications to re-open appeals pursuant to CPR 52.30 have been viewed as a potential way of achieving this aim. The rule provides that the "final determination of any appeal" (which includes an application for permission to appeal) may not be reopened unless – "(a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative effective remedy". Even then, "there is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs".
Previous authorities have confirmed that this power is intended to be very narrow in scope. The "paradigm case" identified in Lawal v Circle 33 Housing Trust  EWCA Civ 1514 was said to be where "the litigation process has been corrupted, such as by fraud or bias or where the judge read the wrong papers".
R (Goring-on-Thames Parish Council) v South Oxfordshire District Council  EWCA Civ 860
The Parish Council challenged the grant of planning permission for hydropower turbines to be installed on the River Thames. In the High Court, Cranston J concluded that the District Council had failed to discharge its statutory duty to "pay special attention" to the desirability of avoiding harm to a conservation area. However, it was "highly likely that the outcome would not have been substantially different if the Council had applied the correct test". Accordingly, he refused to quash the decision.
The Parish Council's application for permission to appeal was refused on the papers by the Court of Appeal. The Parish Council then applied to re-open the permission decision, arguing that the decision on the papers had "failed to grapple with the Appellant's principal ground of appeal and incorporated fundamental legal errors". This, "combined with the fact that the Appellant has had no opportunity to appear before the court" meant that there had been "exceptional injustice".
The Court of Appeal decided to list the application for an oral hearing, presided over by Sir Terence Etherton (the Master of the Rolls), Lindblom LJ and McCombe LJ.
The Court of Appeal's judgment
The Court handed down a single judgment, in which it took the opportunity to restate the exceptional nature of the jurisdiction under CPR 52.30. It would only be engaged "where some obvious and egregious error has occurred in the underlying proceedings and that error has vitiated – or corrupted – the very process itself". Even then, the decision would only be re-opened if there was "a powerful probability" that it was wrong (para 29).
The rigour of that approach was not "in any way relaxed where the decision under consideration is a decision, on the papers, to refuse permission to appeal" (para 30). Nor had the principles been modified or relaxed following the removal of the right to an oral renewal of permission decisions (para 32). There was no "procedural vacuum" that needed to be filled; in fact the paper-only procedure had "considerable advantages" in terms of "saving of time, cost and uncertainty" and "relieving pressure on the court's resources" (para 34).
The Court confirmed that where a party seeks to re-open a permission decision, the Court would need to be satisfied that (i) the grounds of appeal had not been sufficiently confronted and dealt with, to the extent that the process had been critically undermined; and (ii) there is a powerful probability that permission to appeal would have been granted if the judge had dealt adequately with the grounds.
The Court pointed out that whilst the reasons for refusing permission on the papers need to address "the essential issues" raised by the Appellant, they "will seldom need to be lengthy". Where "discursive, repetitive or prolix grounds" have been filed, "it is likely to be more difficult for an applicant to complain that a particular point has not been addressed" (paras 35-36).
The Court of Appeal rejected the Parish Council's application to re-open the permission decision in this case. The decision on the papers had dealt with the parish council's grounds "sufficiently and clearly". There had been no "fundamental legal error". The application fell "well short of meeting the requirements of CPR 52.30(1)".
Although this case arose out of a planning judicial review, it has important implications for appeals in all areas of civil litigation. Whilst largely confirming the existing case law on the scope of CPR 52.30, it is the first case in which the Court of Appeal has considered the application of the power (i) to permission decisions made on the papers and (ii) in the context of the removal of the entitlement to an oral renewal where permission is refused.
By giving a unanimous judgment, from a particularly strong constitution of the Court of Appeal, the Court is sending a clear message that CPR 52.30 does not provide a viable way forward for a disappointed appellant to have another chance to have their case considered, save in the most exceptional circumstances. According to the Court (para 34), "legal representatives advising applicants for permission to appeal should not think, and should not encourage applicants to think, that CPR 52.30 provides a default procedure for challenging the court's decision to refuse the application for permission to appeal, whether on paper or at an oral hearing, if one is held."
This judgment will therefore come as welcome news to those who are successful at first instance in litigation. It confirms that in almost all cases, where permission is successfully resisted on the papers, that will be the end of the matter. For those who are unsuccessful at first instance the judgment provides important confirmation that, now the right to oral renewal exists, the paper application will almost always be the only opportunity to persuade the Court of Appeal to hear the case. Those who are advising disappointed litigants will need to be aware of the strict approach which the Court will take to CPR 53.20 applications.
Emma is a member of Cornerstone's Planning Team. She also practices in housing and general local government. She is on the Attorney General's C panel of counsel and is regularly instructed in judicial review matters. If you have any questions or like to contact Emma, please email firstname.lastname@example.org.