| COURT OF APPEAL — Jurisdiction — Permission to appeal — Application for permission to appeal by person not party to proceedings in court below — Whether “appellant” including non-party — Whether permission to be granted — CPR r 52.1(3)(d)
George Wimpey UK Ltd v Tewkesbury Borough Council (MA Holdings Ltd, prospective appellant) [2008] EWCA Civ 12; [2008] WLR (D) 23
CA: Dyson and Lloyd LJJ: 24 January 2008
The Court of Appeal had jurisdiction to entertain an application by, and to grant permission to, someone who had not been a party to the proceedings in the court below, to enable them to appeal against the decision of the court below. The word “appellant” as defined in CPR Pt 52 did not exclude someone who had not been a party to the proceedings below and the rule should be interpreted in order to meet the overriding objective of enabling the court to deal with cases justly.
The Court of Appeal so stated giving its reason for granting the applicant, M A Holdings Ltd, permission to appeal against the decision of Wyn Williams J dated 3 April 2007 in R (George Wimpey UK Ltd) v Tewkesbury Borough Council [2007] EWHC 628 (Admin) granting to George Wimpey UK Ltd, a quashing order under s 287 Town and Country Planning Act 1990 in relation to parts of the local plan adopted by the defendant, Tewkesbury Borough Council, but dismissing its claim for judicial review. The applicant, which owned a site affected by the plan, did not take party in proceedings below but the judgment went against its interests and the defendant did not propose to appeal.
DYSON LJ said that it would be surprising if the effect of the CPR were that a person affected by a decision could not in any circumstances seek permission to appeal unless he was a party to the proceedings below. Such a rule could work a real injustice, particularly in a case where a person who had not been a party to the proceedings at first instance, but who had a real interest in their outcome, wished to appeal, the losing party did not wish to appeal and an appeal would have real prospects of success. Moreover, in the pre-CPR era the court had jurisdiction to grant leave to appeal to a person adversely affected by the first instance decision. The position at that time was summarised at para 59/3/3 of the Supreme Court Practice 1999 which stated: “in accordance with old Chancery practice, any person may appeal by leave (obtained on an ex parte application to the Court of Appeal), if he could by any possibility have been made a party to the action by service.” CPR r 52.1(3)(d) defined “appellant” as “a person who brings or seeks to bring an appeal”. The word “person” in r 52.1(3)(d) was not qualified by the words “who was a party to the proceedings in the lower court”. If it had been intended to restrict an “appellant” to a person who was a party in the lower court, one would have expected the draftsman so to provide expressly, especially as he had done so in relation to a “respondent” in the definition in rule 52.1(3)(e)(i). Therefore, giving the language its plain and ordinary interpretation, para (d), when interpreted in the light of para (e), did not require an appellant to have been a party to the proceedings in the court below. It would be surprising if the position were otherwise. First, it would mean that the CPR rules as to who might be an appellant would be more restrictive than the corresponding rules in the pre-CPR era. That was inherently unlikely in the light of the opening statement in CPR rule 1.1(1) that the CPR were a “new procedural code with the overriding objective of enabling the court to deal with cases justly”. It would be unjust to deny to MA Holdings the opportunity of seeking to overturn the judge's decision merely because it was not a party to the proceedings in the court below. His Lordship was satisfied that the applicant’s appeal had a real prospects of success for the reasons set out in the grounds of appeal and amplified in the skeleton argument.
LLOYD LJ agreed.
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