Kirby & Others -v- Baker and Metson Limited [2020] EWHC 3181 (Ch)
On 27 October 2020 we reported on the tenants’ (represented by Catherine Taskis of Falcon Chambers and Loxley) success in the case of Kirby & Others v Baker & Metson Ltd [2020] EWHC 2640 (Ch) - an appeal by the tenant against an Arbitrator’s Award under Section 69 of the Arbitration Act 1996 (the '1996 Act').
The High Court’s decision (handed down on 7 October 2020) found that general permitted development rights under the Town & Country Planning (General Permitted Development) England Order 2015 do not fall within Case B of Schedule 3 to the Agricultural Holdings Act 1986. The decision confirms what most practitioners had thought to be the position, but provides helpful clarity.
The High Court’s decision was delivered in accordance with what is common practice with a draft of the judge’s decision provided confidentially to the parties so that they can suggest corrections, the judgment then being finalised and formally 'handed down' remotely on a specified date and the parties then invited to seek to agree the form of order which should flow from the court’s decision. The period between the draft being delivered to the parties and the final version being handed down also gives the parties an opportunity to decide if they wish to seek permission to appeal and, if appropriate, to ask the court to formally adjourn the proceedings to allow the question of permission to appeal to be determined if needs be.
In this instance, the landlord, not having asked the judge to grant permission to appeal or to adjourn the proceedings to allow an application to be made prior to the judgment being handed down, subsequently indicated an intention to appeal to the Court of Appeal and filed Grounds of Appeal and its Skeleton Argument seeking permission to appeal with the Court of Appeal.
Whilst in many instances a disgruntled party wishing to appeal to the Court of Appeal can seek leave to appeal from either the court from whose decision it is appealing or the Court of Appeal, section 69(8) of the 1996 Act states that:
(8) The decision of the court on an Appeal under this section shall be treated as a judgment of the court for the purposes of a further appeal. But no such appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance or is one which for some other special reason should be considered by the Court of Appeal.
Section 105(1) of the 1996 Act defines the 'Court' as the High Court and it has been established by earlier authority that permission to appeal pursuant to section 69(8) must be sought from the High Court itself. The Court of Appeal cannot grant permission in such circumstances.
Realising its mistake, the landlord sought permission to appeal from the High Court. But by that stage not only had the judgment been formally handed down by the High Court with no application having been made for permission to appeal or an adjournment to allow an application to be made, but the Court had gone on to make a final order in terms agreed between the parties.
Following submissions from the parties, the High Court, applying the decision in McDonald v. Rose [2019] EWHC Civ 4, concluded that having handed down its formal judgment on 7 October 2020, with no request for an adjournment having been made let alone granted, the High Court was no longer seized of the matter and could not consider the application for permission to appeal. Nor did it have jurisdiction to extend time and so the question as to whether it was appropriate to grant relief from sanctions also did not apply.
The landlord’s opportunity to seek permission to appeal, and thus any prospect of being able to pursue an appeal, had therefore been lost.
The decision serves as an important warning to practitioners to ensure that they are aware of the provisions of the 1996 Act when an appeal under section 69 is brought and a reminder of the need to seek permission to appeal at the time judgment is handed down or, at the very least, if there is a prospect you may wish to seek permission to appeal, to ask the Court to formally adjourn the hearing to allow an application for permission to be brought.
A copy of the decision can be found here.
For more information please contact Sam Taylor.