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Court of Appeal confirms limited scope for re-opening permission decisions

The Court of Appeal has refused to re-open a permission to appeal decision in a planning case following an oral hearing, after originally refusing permission to appeal in response to a paper application.02 May 2018

Goring-on-Thames Parish Council challenged South Oxfordshire District Council's decision to grant planning permission for a hydroelectric scheme by way of judicial review in November 2016. First instance judge Mr Justice Cranston found that the district council had breached some of its statutory duties when it granted planning permission, but decided against quashing its decision to grant planning permission.

The parish council's paper application for permission to appeal was refused in February 2017, by Lady Justice Rafferty. Since October 2016, parties who are refused permission to appeal on the papers have not then been entitled to renew their application at an oral hearing unless rule 52.30 of the civil procedure rules (CPRs) applies. CPR 52.30 states that, among other things, final determination of an appeal may be reopened in "exceptional" circumstances, where it is "necessary to do so in order to avoid real injustice" and there is "no alternative effective remedy". The rule also applies to applications for permission to appeal.

In a unanimous judgment, Master of the Rolls Sir Terence Etherton and two other Court of Appeal judges have now confirmed the "highly restrictive terms" of CPR 52.30. Its decision, which has implications across civil litigation in England and Wales and not just in planning cases, will be welcomed by parties which are successful at first instance, according to planning law expert Elizabeth Nuttall of Pinsent Masons, the law firm behind Out-Law.com.

"The Court of Appeal has sent a clear message that CPR 52.30 is very narrow in scope, and will only be engaged in extremely exceptional circumstances where not only the process had been critically undermined but there is also a powerful probability that the appeal would have been granted if the grounds had been adequately dealt with," she said.

"The judgment confirms that in almost all circumstances where permission to proceed to the Court of Appeal is refused on the paper application, then that will almost certainly be the end of the litigation. The strict approach will be welcomed by parties who are successful at first instance litigation and provide certainty if any application to the Court of Appeal is made. However, for parties who are unsuccessful at first instance, it will be important to remember that the paper application to the Court of Appeal is likely to be the only opportunity they will have to persuade the court to hear the case," she said.

The parish council based its application to re-open Lady Justice Rafferty's refusal to grant permission to appeal on what is saw as her failure to "grapple" with its principle ground of appeal and her incorporation of "fundamental legal errors". It noted that, due to the changes to the CPRs of October 2016, its case was the first in which a party had "not had the opportunity to appear and make oral arguments to the court", which it argued was the sort of "exceptional injustice" that CPR 52.30 was designed to avoid.

The Court of Appeal disagreed. Previous cases had rightly described the use of the provisions of CPR 52.30 as "exceptional", in the sense that "it will be engaged only 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, a decision could only be re-opened under that rule "if the court is satisfied that there is a powerful probability that it was wrong", the judges said.

Although previous cases had only considered these principles in the context of a substantive appeal, they applied "with equal force" to applications to re-open applications for permission to appeal, the judges said.

"This case provides an opportunity to dispel any doubt there may be on the point that the principles governing the CPR 52.30 jurisdiction have not been modified or relaxed in response to the change in the procedure for the determination of applications for permission to appeal that was brought about with effect from 3 October 2016," the judges said.

"The new procedure … has considerable advantages in the saving of time, cost and uncertainty for the parties - both applicants and respondents - and in relieving pressure on the court's resources, whilst ensuring that applications continue to be fairly and justly determined. It has not created a procedural vacuum that needs to be filled by an expansion of the jurisdiction under CPR 52.30," they said.

The new procedure required appeal court judges to properly explain their reasons for refusing a paper application for permission to appeal, with the idea being that the applicant "must be able to understand why, on the appropriate test under the rules, the intended appeal is not being permitted to proceed", the judges said. They ruled that Lady Justice Rafferty had "sufficiently and clearly dealt with" the parish council's application in this case.