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Plender v Hiyams

2 November 2000
The issues

The manner in which Applications for permission to appeal should be made (inter alia)

The facts

Appellant was a Claimant in person who sought to appeal against the decision of the Judge at trial. He failed to lodge his Appellant’s Notice which included an Application for permission to appeal within time. The Application for permission to appeal was considered on paper by the High Court Judge who refused it stating “for non compliance with Practice Direction (Part 52)” No further details of non compliance were given. The Appellant should have requested that the decision be reconsidered at a re-hearing pursuant to Rule 52.3(4) but instead filed an Appellant’s Notice seeking to appeal to the Court of Appeal. Held.

The decision

1. This was the wrong route. The Court of Appeal had no jurisdiction to hear the Application made by the Appellant. The Appellant instead should apply out of time for a re-hearing of his Application in the High Court.

2. The Court of Appeal would take this opportunity however to provide guidance in general terms. (The Court considered the various possible non compliance by the Appellant in this case in detail). It noted in particular:-

(a) That an Appellant who is not represented need not lodge a Skeleton.

(b) That although the Practice Direction requires an Application for permission to appeal to be made orally at the hearing at which the decision to be appealed against is made (paragraph 4.6.) Paragraph 4.7 provides that where no such Application is made an Application may be made to the Appeal Court – in this case the High Court.

(c) Application for leave was not made within the time limits laid down. See CPR Rule 52.4. It noted that prior to the Court’s Judgment in Tanfern there had been some uncertainty surrounding the introduction of Part 52 and that the Court should take note of this particularly in cases involving Litigants in person in cases where there had been a failure to comply.

(d) Paragraph 4 of the Practice Direction states that the High Court will not allow a hearing for the re-consideration of a decision to refuse permission to appeal on the ground of non compliance with the Part 52 Practice Direction. The Court of Appeal could see no proper basis for that Practice in circumstances where the non compliance itself was challenged. It noted in addition that there may well be other circumstances where a hearing ought to be permitted e.g. once there had been compliance with the Practice Direction after the refusal of permission on paper.

(e) The Claimant had made an allegation of breach of Article 6 of the European Convention. A Litigant should have a right to a reasoned decision. On an Application for leave a Judge dealing with the Application could quite properly be brief in explaining his conclusion but at the very least the Judge should have identified how the Practice Direction was not complied with. “This can be done briefly but it should not be left to the conjecture of the Litigant”.

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