Reopening final appeals

Jeremy Pike and Charles Streeten analyse an important Court of Appeal judgment on applications for permission to appeal, reopening final appeals, and s 31(2A) of the Senior Courts Act.

The Court of Appeal has handed down its judgment in R (Goring-on-Thames PC) v South Oxfordshire DC [2018] EWCA Civ 860.

The High Court (Cranston J) held that the council had breached its statutory duty under s 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990, but refused substantive relief pursuant to s 31(2A).

The appellant then applied for, and was refused, permission to appeal. The decision to refuse permission on the papers was made shortly after the amendment to CPR 52.5 which withdrew the right orally to renew an application for permission to appeal.

The appellant argued that the decision of Raffery L.J. to refuse permission to appeal was so unjust as to engage the Taylor v Lawrence jurisdiction (now set out in CPR 52.30) and to require the court to reopen the appeal.

The appellant argued that the single judge refusing permission on the papers had in particular failed to confront the appellant’s principal ground of appeal; namely that S 31(2A) of the Senior Courts Act 1981 applies only to minor technicalities, and that she had made fundamental legal errors.

In a joint judgment the court (the Master of the Rolls, and McCombe and Lindblom LJJ) rejected these arguments.

They accepted that the test for re-opening a refusal of permission to appeal on the papers is twofold: firstly an applicant must show that the judge whose decision is the subject of the application to re-open has not sufficiently confronted and dealt with the grounds of appeal; secondly, if the conclusion is reached that the process has been critically undermined, that it is highly likely, in the sense of there being a powerful probability, that the decision on the application for permission to appeal would have been different and that permission to appeal would have been granted.

However, applying those principles they found that Rafferty L.J. had sufficiently confronted the appellant’s arguments, and that, in any event, (although they had not heard full argument) they were disinclined to accept the appellant’s construction of s31(2A), namely that it was only engaged where there had been procedural error in a decision under challenge, rather than a substantive error such as an error of law.

The court also observed that the tests for reopening a final appeal remained unchanged, despite the amendment to the rules which removed the right to an oral hearing of an application for permission to appeal to the Court of Appeal.

Charles Streeten acted for the appellant. Jeremy Pike acted for the respondent. Both are barristers at Francis Taylor Building.