Charities - Conditional permission - Permission to appeal - Protective costs orders

R (on the application of Medical Justice) v Secretary of State for the Home Department: CA (Civ Div) (Lord Neuberger of Abbotsbury MR, Lords Justices Hooper, Rimer): 16 March 2011

The appellant secretary of state appealed against, or applied to vary, the terms upon which the judge had given the secretary of state permission to appeal against his decision granting the respondent’s application for judicial review.

The respondent (M) was a charity that assisted those detained in immigration removal centres.

Its application for review related to the alleged absence of any or sufficient notice to certain classes of individuals of their removal from the UK.

M had the benefit of a protective costs order, and there was also a limitation on the costs it could recover, namely that the hourly rates for its counsel were pegged to Treasury counsels’ hourly rates, subject to an uplift.

The judge granted M’s application and there followed a contested hearing of the secretary of state’s application for permission to appeal.

The judge granted permission on terms that, whatever the outcome of the appeal: (i) the order for costs which he had made in respect of the proceedings so far would remain undisturbed; and (ii) the secretary of state would pay M’s costs of the appeal.

The secretary of state sought to challenge those terms.

Held: (1) The secretary of state’s approach was not the right one. Where a first instance judge granted a party permission to appeal on terms, and the party was unhappy with those terms, the party had three options: (a) he could abandon the prospective appeal; (b) he could accept the terms; or (c) he could treat the conditional permission as a refusal of permission to appeal and make a fresh application to the appellate court.

What the party could not do was to treat the permission to appeal granted by the judge as tucked under his metaphorical belt and seek to improve his position by appealing to the appellate court against some or all of the terms.

That conclusion followed from the statutory provisions governing permission to appeal. It was very hard to see how the terms of a permission to appeal could be appealed in light of section 54(4) of the Access to Justice Act 1999.

In such a case there was a single, albeit in a sense a composite, ‘decision’ to grant permission to appeal, and any attempt to appeal that decision was pretty clearly prohibited by that section.

It was hard to see how an appeal against a part of the single, or composite, decision could be entertained: either the decision was appealable or it was not, and section 54(4) said that it was not.

Rule 52.9(1)(c) of the Civil Procedure Rules gave the appeal court the power to vary the terms on which permission had been given; that applied where permission had been given by the judge as well as where it had been given by the appeal court.

However, rule 52.9(3) provided that rule 52.9(1)(c) could be invoked only by a party who was not present at the hearing where the terms were imposed. In the instant case the secretary of state was present and therefore could not appeal against the terms.

As a matter of policy, where a party was seeking to challenge the terms on which he was granted permission to appeal it was sensible to require him to apply to the appeal court for permission rather than challenging the terms, Societe Eram Shipping Co Ltd v Compagnie Internationale de Navigation (Security for Costs) [2001] EWCA Civ 568, [2001] CP Rep 113 and King v Daltray [2003] EWCA Civ 808 not followed, Kuwait Airways Corp v Iraqi Airways Co (Application for Permission to Appeal) [2005] EWCA Civ 934 and Ceredigion CC v Jones [2007] UKHL 24, [2007] 1 WLR 1400 considered (see paragraphs 7-9, 13, 14, 17, 19-24 of judgment).

(2) If the issue was brought to the appeal court it was appropriate that that court should be able to reconsider all aspects of the issue of permission to appeal, not just those terms to which the prospective appellant objected.

It would be able to take into account the judge’s decision to grant permission, as well as his view as to any terms.

The fact that a prospective respondent who was dissatisfied with the terms could not challenge them by referring the issue to the appeal court unless it had had no opportunity to be heard by the judge was consistent with the principle that the question of permission to appeal was essentially a matter between the prospective appellant and the court (paragraph 24).

Appeal dismissed.

Clive Lewis QC, Joanne Clement (instructed by Treasury Solicitor) for the appellant; Emma Dixon (instructed by Public Law Project) for the ­respondent.