Permission to appeal – Reopening of decision – Correct approach – Respondent obtaining summary judgment against appellant on claim related to proposed sale of property as mortgagee – Appellant found to have no arguable defence based on claim to rectification of title by removal of charge – Permission to appeal refused on paper and on renewed oral application – Whether circumstances justifying reopening of permission issue – Application refused
In 2004, four parcels of land owned by the appellant were purportedly transferred to a company, which was registered as proprietor in the appellant’s place. The company executed a charge over the land in favour of the respondent bank to secure all moneys owing. In 2006, the respondent demanded the repayment of more than £100m under its charge. The company failed to pay and went into administration, whereupon the respondent, with the consent of the administrators, decided to sell the land as mortgagee. To that end, brought proceedings against the appellant to secure the removal of notices that he had entered against the titles to the land. By his defence and counterclaim, the appellant claimed that he was still the beneficial owner of the land since the 2004 transfer had taken place without his authority and was void.
The respondent obtained summary judgment in its favour on the ground that the appellant had no arguable defence. The judge held that even if the matters alleged by the appellant rendered the transfer void, the register was still conclusive as to the matters shown therein unless rectified, and the company, as the registered owner, had validly charged the property to the respondent. The appellant’s application for permission to appeal was refused in the Court of Appeal on paper and on a renewed oral application before two judges. It was held that the appellant could not show that the registration of the respondent’s charge was a mistake, so as to give rise to a claim for rectification under para 2(1) of Schedule 4 to the Land Registration Act 2002, where the charge had been executed in proper form by the registered proprietor and the respondent had no notice of the chargor’s defective title: see [2008] EWCA Civ 452; [2008] 2 EGLR 74; [2008] 25 EG 174.
The appellant reapplied to the Court of Appeal to reopen the question of permission to appeal under CPR 52.17. He contended that the decision to refuse permission to appeal had been so plainly wrong and so unjust in its consequences, and the point of law so important and open to argument, that the matter ought to be reopened.
Held: The application was refused.
Under CPR 52.17(1), a final determination of an appeal, including an application for permission to appeal, could be reopened only where it was necessary to do so to avoid real injustice, the circumstances were exceptional and there was no alternative effective remedy. It was a fundamental principle of common law that the outcome of litigation should be final and, accordingly, the court’s jurisdiction to reopen its judgments was narrow and was based on its power to take action to maintain its character as a court of justice: Taylor v Lawrence (appeal: jurisdiction to reopen) [2002] EWCA Civ 90; [2003] QB 528 applied. It was insufficient that a wrong result had been reached; the jurisdiction could be invoked only where the integrity of the earlier litigation process had been critically undermined and the process had been corrupted: Re U (a child) (serious injury: standard of proof) (permission to reopen appeal) [2005] EWCA Civ 52; [2005] 1 WLR 2398 applied. The same approach applied to an application to reopen a refusal of permission to appeal as to an application to reopen a final judgment reached after full argument.
The appellant’s application had to fail. His only argument was that, at the hearing of his application for permission to appeal, the two judges had been wrong, on the material before them, to conclude that his appeal had no realistic prospect of success. This was not a case where the earlier decision had proceeded in ignorance of any relevant cases, articles or textbook, or where the appellant could refer to any subsequent Court of Appeal or Supreme Court decision in which it had been suggested, let alone held, that the decision in question had been wrong. Even supposing that the judges had been wrong to conclude that the appellant had no arguable case, their decision was not so wrong that allowing it to stand would corrupt the judicial process.
Whether the appellant could obtain the removal of the respondent’s registration as chargee from the charges register relating to the land, under para 2(1)(a) of Schedule 4 to the 2002 Act, turned on whether the concept of “correcting a mistake” should be given a narrow or a wide meaning. The judges’ analysis at the earlier permission hearing had proceeded on the basis that the alleged “mistake” for the purposes of para 2(1)(a) was the registration of the charge in the charges register. Although the appellant’s case could be phrased differently, raising points that the judges might have assumed the appellant was not strongly advancing or was conceding, that did not justify reopening the matter. The points in question were that: (i) the removal of the appellant’s name from the proprietorship register was a mistake, the correction of which would require the removal of the charge from the charges register; or (ii) the registration of the charge flowed from a mistake in registering the 2004 transfer and should therefore be treated as part and parcel of that same mistake. Neither of those points was exceptional nor could the failure to raise them be characterised as having corrupted the judicial process. Although a decision could be revisited if a judge had completely failed to understand a clearly articulated point, it could not be reopened solely because a party had failed to advance that point or had argued it ineptly. To reopen a decision to enable an unsuccessful applicant to present its arguments more favourably than in the original trial was wrong in principle: Jaffray v Society of Lloyds [2007] EWCA Civ 586; [2008] 1 WLR 75 applied.
Nicholas Stewart QC, William Evans and Russell Stone (instructed by Bridgehouse Partners LLP) appeared for the appellant; Christopher Nugee QC and Julian Greenhill (instructed by Linklaters LLP) appeared for the respondent.
Sally Dobson, barrister
