A judge refused permission to appeal to the Court of Appeal after dismissing an appeal from an arbitrators' award. Section 69(8) of the Arbitration Act 1996 prohibits any further appeal if the judge at first instance refuses permission.
However, the appellant sought to rely on the Court of Appeal's "residual jurisdiction" to set aside a judge's refusal to grant permission to appeal if the judge has not made a "true decision" (eg he did not hear any argument on the point). The appellant therefore filed a notice of appeal asking for the judge's order to be set aside and seeking permission to appeal. Longmore LJ refused permission on the basis that the application was totally without merit.
The appellant then sought to argue that its application to the Court of Appeal had not been an "appeal" at all, and so permission had not been required. It based its argument on the fact that it was invoking the court's residual jurisdiction and that does not involve an appeal. That argument has now been rejected by the Court of Appeal which has held that, if that had not been an appeal, then it had no jurisdiction to hear the application at all. It further held that the residual jurisdiction in fact derives from section 16(1) of the Senior Courts Act 1981, and the right to invoke that jurisdiction is a "right of appeal".