Court of Appeal considers the grounds for reopening an application for reconsideration of a refusal to allow permission to appeal

In Trevor Guy v Barclays Bank plc [2010] EWCA Civ 1396 the Court of Appeal heard an application under CPR 52.17 for reconsideration of a refusal to grant permission to appeal a summary judgment decision.

The facts of the case involved the transfer of land belonging to the Appellant. This land was registered in the name of a company and used as security for a loan from the Respondent to another company. The Appellant submitted that the initial transfer was completed without his authority. The Court found that the Respondent had been validly registered as the proprietor of a charge, and as such was free to exercise its powers to sell the property. On this basis, the Respondent was granted summary judgment and the Appellant was refused permission to appeal this decision.

The Appellant applied to reopen the application for permission to appeal, on the grounds that the judges on the permission application were wrong to conclude that the appeal stood no prospect of success. The issue, on the facts, was whether the Appellant would be able to persuade the court to remove the registration of the Respondent as a chargee for the purpose of correcting a mistake.

The focus of the judges on the permission application had been whether the registration of the charge, rather than the transfer, was a “mistake”. While it could be argued that the charge flowed from the mistake of registering the transfer, the Appellant had not advanced this argument very strongly in the permission application and it could not be considered an “exceptional circumstance” justifying reopening the application under CPR 52.17. The Court noted that if a party fails to advance a point, or argues that point ineptly, that will not, at least without more, justify reopening a decision of the court.

The Court also considered whether it was necessary to reopen the application in order to “avoid real injustice” (as required by CPR 51.17(1)(a)). While the application was important to the Appellant (due to the high value of the land), it was also important to the Respondent. There were also issues of public interest to consider, i.e. the need for finality in litigation.  

Under CPR 52.17, “appeal” includes an application for permission to appeal. The Court clarified that the criteria in CPR 52.17 should be applied just as rigorously to reopening an application for permission to appeal as to reopening an appeal.