Whether refusal to give permission to appeal should be set aside where respondent had lied at trial
This was an application pursuant to CPR r52.17 to set aside an order from the Court of Appeal refusing the appellant permission to appeal. The appellant claims that the original judgment had been obtained by fraud. CPR r52.17 provides that the Court of Appeal will not reopen a final determination of any appeal unless (a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative remedy (an “appeal” in this context includes an application for permission to appeal).
Aikens LJ said that it is requirement (c) which causes difficulty in general. A debate has taken place since this rule came into force in 2003 as to whether, where it asserted that the original decision was obtained by fraud, there is an “alternative effective remedy” because the proper course is that a fresh action should be commenced to set aside the original judgment. If that is correct, CPR r52.17 cannot be relied upon to reopen an appeal (or permission to appeal).
The Court of Appeal accepted that there are difficulties in mounting a second action in the county court to rescind an earlier judgment obtained by fraud and it is seriously open to doubt that the High Court has the jurisdiction to impeach the original county court decision. For those jurisdictional and procedural reasons, it could not be said that there was an effective alternative remedy in this case. Accordingly, the Court of Appeal did have jurisdiction to set aside the order refusing permission to appeal and, on the facts, agreed to do so.