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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wingfield, R (on the application of) v Canterbury City Council & Anor [2020] EWCA Civ 1588 (27 November 2020) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2020/1588.html Cite as: [2020] EWCA Civ 1588, [2021] 1 WLR 2863, [2021] WLR 2863 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
THE HONOURABLE MRS JUSTICE LANG DBE
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE COULSON
and
LADY JUSTICE ANDREWS DBE
____________________
R (on the application of ELIZABETH WINGFIELD) |
Applicant |
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- and - |
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(1) CANTERBURY CITY COUNCIL (2) REDROW HOMES (SOUTH EAST) |
Respondents |
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Isabella Tafur (instructed by Canterbury City Council Legal Services) for Canterbury City Council.
Andrew Tabachnik QC (instructed by Redrow Homes Limited) for Redrow Homes (South East).
Jenny Wigley (instructed by Howes Percival Solicitors) for HNC Developments LLP.
Hearing date: 30 October 2020
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Crown Copyright ©
The Senior President of Tribunals, Coulson and Andrews L.JJ.:
Introduction
"52.30 – (1) The Court of Appeal or the High Court will not reopen a final determination of any appeal 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.
(2) In paragraphs (1), (3), (4) and (6), "appeal" includes an application for permission to appeal.
…
(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.
(6) The judge must not grant permission without directing the application to be served on the other party to the original appeal and giving that party an opportunity to make representations.
(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.
(8) The procedure for making an application for permission is set out in Practice Direction 52A."
The factual background
The history of the judicial review proceedings
The applications for permission to appeal
"68. … [The] courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of "evolving" during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed.
69. These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation."
"12. I wish to make it clear to practitioners who appear in the Administrative Court that failure to observe the requirements of the rules and/or case management directions, with the result that claims for judicial review evolve exponentially, denying the court any opportunity to consider material changes and evaluate how they impact on the proceedings, may result in orders being made with a view to reinforcing the message in Talpada. The court may refuse to allow the claim to proceed on grounds for which permission has not been given. It may also make adverse costs orders, even in cases where the claimant is ultimately successful in obtaining judicial review on new or expanded grounds."
The first application under CPR 52.30
The second application under CPR 52.30
The purpose and parameters of CPR 52.30
"Rule 52.30 is drafted in highly restrictive terms. The circumstances described in r.52.30(1) are truly exceptional. Both practitioners and litigants should note the high hurdle to be surmounted and should refrain from applying to reopen the general run of appellate decisions, about which (inevitably) one or other party is likely to be aggrieved. The jurisdiction can only properly be invoked where it is demonstrated that the integrity of the earlier proceedings, whether at trial or at first appeal, has been critically undermined."
"It also follows that the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large, or that the point in issue is very important to one or more of the parties or is of general importance is not of itself sufficient to displace the fundamental public importance of the need for finality."
"This is an exceptional jurisdiction, to be exercised rarely: "the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation" (Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514; [2015] HLR 9 at [65] per Sir Terence Etherton VC (as he then was)). The jurisdiction will therefore not be exercised simply because the determination was wrong, but only where it can be demonstrated that the integrity of the earlier proceedings has been "critically undermined" (R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] EWCA Civ 860; [2018] 1 WLR 5161 at [10]-[11]; and then only where there is "a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined" (ibid at [15])."
(1) A final determination of an appeal, including a refusal of permission to appeal) will not be reopened unless the circumstances are exceptional (Taylor v Lawrence).
(2) There must be a powerful probability that a significant injustice has already occurred, and that reconsideration is the only effective remedy (Taylor v Lawrence, In Re Uddin).
(3) The paradigm case is fraud or bias or where the judge read the wrong papers (Barclays Bank v Guy, Lawal).
(4) Matters such as the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large or the point in issue is important, are not of themselves sufficient to displace the fundamental public importance of the need for finality (Lawal).
(5) There must be a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined (Goring-on-Thames Parish Council).
"21. Secondly, the jurisdiction to allow a second application for permission to reopen a decision, whether in the extradition jurisdiction under Criminal Procedure Rule 50.27 or in the Civil Courts under Civil Procedure Rule 52.30, may exist in theory, but Mr Josse QC and Mr Keith could not point to any case in which it has ever been exercised. For my part, I find it difficult to imagine circumstances in which it would be appropriate for a court to allow a second application. Even first applications for permission to reopen are overwhelmingly without merit: see the notes to Civil Procedure Rule 52.30 in the Civil Court Practice, although there are some, very rare, examples of first applications succeeding." (emphasis added)
Analysis
Engagement with the issues
Egregious error?
"21. A court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law was raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it is established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt."
"62. … They will thus be required, in accordance with the above-mentioned CILFIT case-law, to indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the Court of Justice, or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt."
"20. In that regard, attention should be drawn to the importance, both of the community legal order and national legal systems, of the principal of res judicata. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called into question (Kohler (C-224/01) [223] ECR 1-10239; [2003] 3 CMLR 28 at [38].
21. Therefore, community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to remedy an infringement of community law by the decision at issue."
Conclusions
Note 1 Subsequently, there has been some doubt as to whether CPR 52.30 is available in a case of fraud (see Jaffray v Society of Lloyd’s [2007] EWCA Civ 586), although that may be on the narrow ground that fraud would justify a collateral action, such that reopening would not be the only available remedy. [Back]