MA Holdings Ltd. v George Wimpey UK Ltd, R (of the Application of) & Anor

On 15 January 2008, we gave MA Holdings Limited (“MA”) permission to appeal the decision of Wyn Williams J dated 3 April 2007 in George Wimpey UK Limited (“Wimpey”) v Tewkesbury Borough Council (“the Council”) [2007] EWHC 628 (Admin). We said that we would give our reasons in writing later. These are my reasons. We reserved our reasons because an issue of jurisdiction was raised as to whether MA could appeal in this case although it had not been a party to the proceedings in the court below. This is an issue on which there is no previous authority post the introduction of the CPR.

Since 6 August 2002, MA has been the owner of a site in Leckhampton Lane, Shurdington, Gloucestershire (“the Site”). On 10 April 2006, the Council adopted the Tewkesbury Borough Local Plan (“the Local Plan”) after a substantial process of consultation. The Site was shown in the Local Plan as allocated for residential development. At all material times, Wimpey has been the owner of land to the north of Bishops Cleeve, Gloucestershire known as “Homelands Farm”. This site was not allocated for residential development on the Local Plan.

In May 2006, Wimpey issued proceedings under section 287 of the Town and Country Planning Act 1990 as a party aggrieved by the allocation in the Local Plan. It sought to quash the Council’s decision to adopt the Local Plan and also sought judicial review of the decision. The particular aspects of the plan to which Wimpey objected were the allocation for residential development of the Site and of another site at M & G Sports Ground. The proceedings were served on and opposed by the Council. MA was not served and did not apply to be joined as a party. Wyn Williams J allowed Wimpey’s application under section 287 of the 1990 Act and dismissed the judicial review claim. He held that the decision to allocate the Site for residential development was irrational in that the Council had failed to have regard to the policy guidance contained within PPG3 and the draft guidance contained in PPS3. He also held that the Council had failed to give adequate reasons for its decision in relation to the allocation of the Site. He ordered the parts of the Local Plan which pertained to the Site and the M & G Sports site to be quashed.

The Council decided not to appeal. But MA wishes to appeal and has served a notice of appeal setting out detailed grounds of appeal. Wimpey submits that the appeal has no real prospects of success and that permission to appeal should be refused. But it has taken a threshold objection to the application. It says that the court has no jurisdiction to allow MA to appeal in any event since it was not a party to, and took no part in, the proceedings before the judge. Alternatively, it submits that, if there is jurisdiction to allow MA to appeal, this jurisdiction should only be exercised in exceptional circumstances and there are no such circumstances in the present case.

The history of the interest of MA and its associated companies in the Site is set out in some detail in two witness statements made by Mr True, a solicitor employed by Dechert LLP who has the general conduct of the appeal on behalf of MA. It is sufficient to say that the beneficial ownership of the freehold of the Site vested in MA by a deed of transfer dated 6 August 2002. On 10 March 2006, MA granted David Wilson Homes Limited an option to purchase the Site, but this option has not been exercised.

It is not in dispute that MA was at all material times aware of the Wimpey proceedings. Representatives of MA and its associate companies were present in court throughout the proceedings. A draft judgment was made available to Wimpey and the Council (but not to MA) on 22 March 2007. Judgment was formally handed down on 3 April when a representative of MA’s consultants was in court. No application was made by the Council or MA to the judge for permission to appeal.

Mr True says that, following the judge’s decision, MA’s adviser (Martin Dawn Plc) and its planning consultant (The Barton Willmore Partnership) made a number of enquiries of the Council to elicit whether it intended to seek permission to appeal. Mr True was told by both of them that, despite several enquiries, they had not been able to establish the Council’s position. On 19 April, he telephoned the Council. He was told by Mr David Jones, the Head of Development Control, that the Council had decided not to appeal.

Mr Robin Purchas QC submits that (i) the court has power to grant permission to appeal although MA was not a party in the court below, since it is an “appellant” within the meaning of CPR 52.1(3)(d) or alternatively, the court has such power under its inherent jurisdiction and (ii) this power should be exercised in the circumstances of this case. Before I deal with these submissions in detail, I should make some preliminary observations.

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 was not a party to the proceedings at first instance, but who has a real interest in their outcome, wishes to appeal, the losing party does 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 1999 edition of the Supreme Court Practice 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.” Authority for this proposition included Re B (an infant) [1958] 1 QB 12. Lord Evershed MR said at p 17:

“…But, in any event, in my judgment, the general jurisdiction conferred upon this court by R.S.C., Ord. 58, would suffice if it could not properly be said that the mother was here a “party” to the proceedings within the meaning of section 105 of the County Courts Act, 1934. According to the note on p.1244 of the Annual Practice, 1957 ed., it is said: “But in addition, in accordance with old Chancery practice, any person may appeal by leave (obtained on ex parte motion to the Court of Appeal) if he could by possibility have been made a party to the action by service”; and a number of cases are cited. There cannot be any doubt that by possibility the mother could have been made a party, in the strict sense, by being a respondent to the application and, in fact, in the present case leave was given by this court for the mother to bring the matter here. I, therefore, am satisfied in this case that there is jurisdiction in this court to hear and determine the question of the validity and propriety of the order of February 25 as upon an appeal.”

In Warren v Uttlesford District Council [1996] COD 262, Judge J considered a case in which a third party sought to join in proceedings at first instance under section 287 of the 1990 Act. The proceedings were governed by RSC Ord 94. Judge J noted that Ord 94 did not contain provisions equivalent to Ord 53 r 5(3) and 9(1) for those “directly affected” and for a “person who desires to be heard”. A summary of his judgment is to be found in [1996] COD 262 in these terms:

“In general terms there was no doubt that the company was interested in the outcome of the proceedings and that, from its point of view, it was essential that the application under section 287 should fail. That section was not, however, concerned with private law litigation between parties but with issues of public law in accordance with statutory provisions. It was to be noted that in R.S.C. Order 94, which was directly concerned, interalia, with applications under the 1990 Act, there were no equivalent provisions to those to be found in Order 15, rule 6(2). Moreover, Order 94 likewise lacked any provision which could be equated with applications for judicial review under Order 53 where rule 5(3) and rule 9(1) made provision respectively for those “directly affected” and for a person who “desires to be heard”. Section 287 did not involve private litigation and did not amount to a cause or matter under Order 15 rule 6(2)(b). The issue was the validity of the planning decision reached by the planning authority. Had it been thought appropriate for proceedings under section 287 to include an entitlement in persons “directly affected” by the decision, express provision could have been made in the statute or the relevant rule. In the court’s judgment Order 15 rule 6(2) did not provide such a basis.

The final question was whether the court had power to grant the application in the exercise of its inherent jurisdiction. When there were express provisions governing civil proceedings it might appear somewhat surprising that a jurisdiction which could not be found in any order existed although not articulated. However, if the court believed that injustice might be perpetrated against a person or party with an interest in the outcome of section 287 proceedings because, for example, the planning authority had become involved in a corrupt bargain with a person asserting a grievance under section 287, the court should be able to come to the assistance of a person adversely affected and, among other remedies, permit him to join the litigation and be heard. An example of outrageous conduct had been chosen deliberately in order to emphasise that there was no express provision for intervention in the ordinary section 287 case, however substantial or complicated. This inherent jurisdiction was not available for use simply as a convenient tag to permit intervention. As it was impossible to envisage the wide variety of circumstances in which the court might feel it appropriate to act under its inherent jurisdiction, in the context of an application under 287, the court would add simply that it would be a very rare case indeed, and this was not one of them.”

It is common ground that this decision correctly stated the law that was applicable pre-CPR. It is clear, therefore, that there could be rare circumstances where, in the exercise of its inherent jurisdiction, the court should permit a person who had an interest in the outcome of section 287 proceedings to join the litigation so as to avoid an injustice to him. In the pre-CPR era, a person in the position of MA “could by possibility” have been made a party to the proceedings at first instance. That would have been sufficient to give the court jurisdiction to grant MA leave to appeal in a case such as this, although for the reasons given by Judge J, it is highly likely that an application to be added as a party in the proceedings in the court below would have failed.

CPR 52.1(3)(d) defines “appellant” as meaning “a person who brings or seeks to bring an appeal”. It is also necessary to have regard to the definition of “respondent” in rule 52.1(3)(e) viz: “(i) a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and (ii) a person who is permitted by the appeal court to be a party to the appeal”.

Mr Purchas submits quite simply that there is nothing in the CPR which places a limitation on who can be an appellant. In particular, there is nothing in CPR 52 or CPR PD 52 or elsewhere which states that a party must be joined as a party to the proceedings as a condition of being able to apply for permission to appeal or that a party who was not a party to the proceedings below cannot appeal the decision.

Mr Peter Village QC submits that the definition of “respondent” in rule 52.1(3)(e) implies that the “appellant” must have been a party to the original proceedings in the lower court, because otherwise there would have been no need to state “other than an appellant” in rule 52.1(3)(e)(i). He relies on the summary of recommendations to the Lord Chancellor by the Bowman Committee review of the Court of Appeal (Civil Division) which was published in November 1997 as an aid to the interpretation of “appellant”. Paragraph 3 of chapter 2 states that “an individual who has grounds for dissatisfaction with the outcome of his or her case should always be able to have the case looked at by a higher court…”; and paragraph 12 of chapter 7 states that “a party intending to appeal must serve the respondent with a notice of intention to appeal…” (emphasis added in both cases).

Mr Village further submits that rule 52 must be read in conjunction with rule 19 which provides for the addition of parties to the proceedings. He submits that an application by MA to be a party to the original proceedings in this case would have failed. The application would have failed because this was not one of those very rare cases referred to by Judge J in Warren. MA had no special reason to be added as a party to the proceedings below.

I do not accept Mr Village’s submissions as to the meaning of “appellant”. I see no reason not to give the definition its plain and ordinary meaning. The word “person” in rule 52.1(3)(d) is 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 has done so in relation to a “respondent” in the definition in rule 52.1(3)(e)(i).

The inclusion of the words “other than the appellant” in paragraph (e)(i) does not shed light on the definition of “appellant” in paragraph (d). There are two definitions of “respondent” in paragraph (e). The definition in paragraph (e)(i) is of a person (other than the appellant) who was a party to the proceedings in the lower court and who is affected by the appeal. This definition requires the person to have been a party to the proceedings in the lower court. The reason for adding the words “other than the appellant” is to exclude the appellant from this definition of respondent. It does not imply that an appellant must in all cases have been a party to the proceedings in the lower court. The definition of respondent in paragraph (e)(ii) is of a person who is permitted by the appeal court to be a party to the appeal. There is no requirement for the purposes of this definition that the person must have been a party to the proceedings in the lower court. Paragraph (e)(ii) simply gives the court a wide power to permit any person to be a party to the appeal as a respondent, whether or not he was party to the proceedings in the lower court.

In my view, therefore, giving the language its plain and ordinary interpretation, paragraph (d), when interpreted in the light of paragraph (e), does 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 may be an appellant would be more restrictive than the corresponding rules in the pre-CPR era. That is inherently unlikely in the light of the opening statement in CPR rule 1.1(1) that the CPR are a “new procedural code with the overriding objective of enabling the court to deal with cases justly”. For reasons which I give in paragraphs 25 and 26 below, it would be unjust to deny to MA the opportunity of seeking to overturn the judge’s decision merely because it was not a party to the proceedings in the court below.

Secondly, as I have said, a person may be a respondent even if he was not a party to the proceedings in the lower court. CPR rule 52.5 provides for the filing and serving by a respondent of a respondent’s notice. A respondent may seek permission to appeal from the appeal court: rule 52.5(2)(a), whether or not he was a party to the proceedings in the lower court: see the definitions of “respondent” in rule 52.1(3)(e). It would be surprising if the rules provided that a respondent could seek permission to appeal even if he had not been a party to the proceedings in the court below, but that the appellant could not do so. No reason has been advanced to explain why it should have been intended to draw a distinction between the two cases.

I doubt whether it is right to have regard to the Bowman report as an aid to the proper interpretation of the CPR. The rules and practice directions were the product of much deliberation and consultation by the Civil Procedure Rule Committee. They should be interpreted according to their natural language but so as to give effect to the overriding objective of dealing with cases justly: see CPR rule 1.1 and 1.2(b). In any event, I do not consider that the Bowman recommendations support the proposition that an appellant must have been a party to the proceedings in the lower court. In the overwhelming majority of cases, the appellant will have been party to those proceedings. It is, therefore, not surprising to find in the summary recommendations statements such as those relied on by Mr Village. But there is nothing in the summary recommendations or the full report published in September 1997 to suggest that the Bowman committee considered that a person should not be able to appeal unless he was a party to the proceedings in the court below.

In my view, the question of jurisdiction turns on the true meaning of “appellant” in rule 52.1(3)(d) which, for the reasons I have given, does not require that the person seeking to appeal was a party in the proceedings in the lower court. I do not consider that it is necessary to have regard to CPR 19. Even if an application by MA under rule 19.2 and 19.4 to be added as a party in the proceedings below would have failed, that fact cannot shed any light on the true meaning of “appellant”. I accept, however, that the fact that such an application was not made may be relevant to the question whether MA should be given permission to appeal. I discuss below the question of how the jurisdiction to grant permission to appeal should be exercised in a case where the appellant was not a party to the proceedings in the court below.

In view of the clear conclusion that I have reached on the basis of an application of CPR 52.1(3)(d), I do not need to consider whether this court could permit MA to appeal in the exercise of its inherent jurisdiction.

With the limited exceptions stated in rule 52.3(3), an appellant requires permission to appeal in all cases. This is the mechanism by which the court ensures that the only appeals that are brought to the court are those which it is appropriate to bring. The principal means by which this is done is by only granting permission to appeal where the court considers that the appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard: rule 52.3(6). But even if the court considers that an appeal would have a real prospect of success, it has a discretion to refuse permission to a person who has no real interest in the appeal. A person who was a party to the proceedings in the court below will normally have a sufficient interest in the appeal. But a person who was not a party and who (unlike MA) was a mere busybody would usually be refused permission to appeal even if he could show that an appeal would have a real prospect of success.

MA cannot be criticised for not applying for permission to appeal in the court below. It had no sight of the draft judgment. Although its agent was present in court on 3 April when judgment was handed down, he was not its legal representative and was not authorised to apply for permission to appeal. It was entirely understandable that MA should have waited to find out whether the Council was intending to seek permission to appeal before deciding whether to do so itself. It was reasonable for it to assume that the Council would be likely to seek to appeal. What was at stake was its Local Plan which was the product of several years’ intensive work and which was of great importance to the Council. If the Council had sought permission to appeal, there is no reason to suppose that MA would have wished to participate in the appeal any more than it did in the proceedings at first instance.

But the position changed on 20 April 2007 when MA discovered that the Council did not intend to seek permission to appeal. The judge’s decision to quash the relevant parts of the Local Plan affected MA’s property interests. If an appeal would have real prospects of success, it would be a real injustice to MA to deny it the right of appeal. MA was no mere intermeddling busybody.

Mr Village advances two principal reasons why, if the court has jurisdiction to grant permission to appeal, it should not do so. The first is that MA made a tactical decision not to be a party to the proceedings in the court below and such an application would have failed anyway. The second is that the grounds of appeal have no real prospects of success.

As regards the first point, this seems to me to be irrelevant. I accept that it is highly likely that an application by MA to be a party to the proceedings below would have failed. Applying the approach adopted by Judge J in Warren, I see great force in the submission that justice would not have required MA to be a party. The Council was defending the section 287 proceedings. It instructed leading counsel for that purpose. The interests of MA and the Council were in all material respects the same. MA had no reason to seek to be added as a party to the proceedings. In the circumstances of this case, the fact that it (and others affected by the Local Plan) had an interest in the defence of the Local Plan was not sufficient to justify adding it as a party to the proceedings.

But it does not follow from the fact that an application to made a party to the proceedings at first instance would have failed that an application for permission to appeal should be refused. The true analogue would be an application by MA to be added as a party to the appeal if the Council had been appealing. The fact that the Council had decided not to appeal completely changed the landscape.

As for the second point, I am satisfied that MA’s appeal has real prospects of success for the reasons set out in the grounds of appeal and amplified by Mr Purchas in his skeleton argument. We gave Mr Village the opportunity to address the court briefly on what he referred to as his “knock-out point”. He submits that it is incontestable that the judge was right to hold that the Council had not given reasons for dismissing the objections that had been made by Wimpey to the allocation of the Site for residential development. But I am satisfied that it is arguable with a real prospect of success that the answers given by the Council did amount to sufficient reasons. These answers are to be found at page 422 of the bundle prepared for the Court of Appeal supplemented by the witness statement of Mr Clempson.

For these reasons, in my judgment MA should be given permission to appeal.

I agree.