Appeal – Power to set aside appeal decision – CPR 52.17 – Magistrates’ court allowing respondent’s appeal from noise abatement notice served by appellant council – Decision reversed on appeal to High Court – Court of Appeal hearing and allowing further appeal – Court of Appeal decision invalid for lack of jurisdiction – Whether grounds to set aside High Court decision under CPR 52.17 – Application refused
In April 2005, the appellant council served the respondent with a noise abatement notice, under the Environment Protection Act 1990, in respect of noise arising from the operation of a shooting ground. The notice was left in the postbox at the shooting ground because in a previous noise abatement action, the respondent had written to the appellants asking them to use that address for all further correspondence. The respondent’s appeal to the magistrates’ court against the 2005 notice was dismissed on the ground that it had not been lodged within the requisite period of 21 days after service of the notice. That decision turned on a finding that the shooting ground address was an “other address” at which the respondent had specified that he would accept services of notices, within the meaning of section 160(5) of the 1990 Act, such that the notice had been properly served.
On an appeal by way of case stated, the High Court reversed the magistrates’ decision holding that the respondent had indicated the shooting ground as being an address for correspondence only, not for the service of notices. An order was made to remit the case to the magistrates’ court to determine the respondent’s appeal against the noise abatement notice. However, the appellants obtained permission to appeal the High Court decision, which was allowed by the Court of Appeal, and that appeal was allowed: see [2007] EWCA Civ 1298; [2007] PLSCS 228.
It subsequently came to the Court of Appeal’s attention that, by reason of sections 18(1) and 28A of the Supreme Court Act 1981, it had lacked jurisdiction to hear the appeal. It accordingly ordered that its earlier decision be set aside. In response, four months later the appellants applied to the High Court for permission to reopen its earlier decision, pursuant to CPR 52.17, and for an order that that decision be set aside. It submitted that the case met the requirements of CPR 52.17(1) for reopening an appeal, namely that: (i) it was necessary to avoid real injustice; (ii) the circumstances were exceptional such that it was appropriate to reopen the appeal; and (iii) there was no alternative effective remedy.
Held: The application was refused.
A high threshold had to be met before an appeal could be reopened under CPR 52.17. Although the instant case met the requirement of exceptional circumstances, in that the Court of Appeal had acted without jurisdiction, and although there was no alternative effective remedy, it was not necessary to reopen the appeal in order to avoid real injustice. That requirement would be met only where there was shown to be a powerful probability, as opposed to merely a real possibility, that a significant injustice had been perpetrated by the decision that was being appealed: Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528, Seray-Wurie v Hackney London Borough Council [2002] EWCA Civ 909; [2003] 1 WLR 257 and Re Uddin [2005] EWCA Civ 52; [2005] 1 WLR 2398 applied. It was not possible to proceed on the assumption that the High Court decision was wrong merely because the Court of Appeal had considered it to be so. In the absence of any jurisdiction to determine the matter, the Court of Appeal “decision” had no binding validity as legal precedent and could not give rise to any res judicata, issue estoppel or any other kind of estoppel binding upon either party: Aire Property Trust v Treeweek [1989] 1 EGLR 61; [1989] 07 EG 74, Gardi v Secretary of State for the Home Department (No 1) [2002] EWCA Civ 750; [2002] 1 WLR 2755 and Farley v Secretary of State for Work and Pensions (No 1) [2005] EWCA Civ 778; [2005] 2 FLR 1059 considered. Although the Court of Appeal’s view was to be taken into account, it was neither obviously correct nor more probably correct than the contrary view reached by the High Court. Therefore, the appellants had not met the requirements of CPR 52.17.
Moreover, refusing the appellants’ application would not deprive them of the chance to defend the respondent’s appeal to the magistrates’ court on the merits. The error in process that had given rise to the application had not critically undermined or corrupted the integrity of the earlier litigation process, given that the matter had been fully and properly argued before the High Court, and no damage would be caused to public confidence in the administration of justice.
Nigel Vaughan (instructed by the legal department of Powys County Council) appeared for the appellants; Gerard Heap (instructed by Lloyd Williams, of Swansea) appeared for the respondent.
Sally Dobson, barrister
