Unique Pub Properties Ltd v Gregarious Ltd

LORD JUSTICE DAVIS: It seems to me that the order as drawn up and approved by Judge Baucher connotes, and indeed it is consistent with a number of her remarks made in the discussion according to the transcript, that she was dealing with the question of permission to appeal, even if she was also assessing the issue of an extension of time.

No appeal can lie against the refusal of the judge to grant permission to appeal by reason of section 54 of the Access to Justice Act 1999 and, in my view, that being so, jurisdiction cannot be given to this court simply because Mr Smith has a complaint that the judge failed to assess the issue of permission to appeal and the underlying merits properly or, as he would say, at all.

Accordingly, the lack of jurisdiction in this court is, in my view, fatal to this application.

But I do not simply leave matters there because I will also deal with the underlying approach, which Mr Smith has adopted on behalf of the applicant. First, the premise of the principal argument is that Judge Saggerson, on the papers, had by inference dealt with the question of extension of time and had granted it. That, if correct, gives rise to a difficulty just because it connotes that, if so, Judge Baucher could only have been dealing with the question of permission to appeal.

But, be that as it may, in my view, it is pretty plain that Judge Saggerson was not dealing with the question of extension of time at all; he simply put it to one side and decided that there was no arguable case for permission. Therefore, it was open to Judge Baucher to deal with the question of extension of time. In this context, Judge Baucher had approached matters entirely properly.

Where questions of possession of property are concerned, it is self-evidently prejudicial to a landowner for time limits not to be observed in appealing by the person who is in possession. This breach, therefore, of the time limits was material in this particular case and the time was by no means insignificant.

Further, there can be no special indulgence, as the authorities show, for those who are not represented at the time and even though the applicant also advanced certain personal difficulties of his to seek to justify in part the delay. Overall there was no significant explanation, as the judge was entitled to find.

Finally, as to the position of the overall justice of the case, the judge reached a conclusion which was plainly open to her in her discretion.

Accordingly, I can see no basis for attacking the judge's ruling on the question of extension of time.

Once that is so, then in reality the whole matter fell away because if it was not appropriate to grant an extension of time for permission to appeal, then permission to appeal itself could not properly be granted.

As to the various other procedural issues about the joinder or non-joiner, as the case may be, of the applicant, that clearly did not form a decisive matter in the judge's reasoning and indeed was not required to be decisive. She was certainly entitled to make an order for joinder for the purposes of the costs order which she made, as she did. That was a matter for discretion for her.

Overall, as it seems to me, this application could not possibly meet the second appeals test standard, which is the standard which has to be applied. I would go further. I do not think it could even meet the first appeals test standard. I think Floyd LJ had been quite right to refuse permission on the papers. That is the same conclusion I draw having heard the oral argument and, accordingly, I refuse this application.