Uphill v BRB (Residuary) Ltd: CA 3 Feb 2005

The court considered an application for leave for a second appeal.
Held: Pursuant to the Practice Direction, the court certified that though this was an application for leave, it could be cited: ‘the reference in CPR 52.13(2)(a) to ‘an important point of principle or practice’ is to an important point of principle or practice that has not yet been established. The distinction must be maintained between (a) establishing and (b) applying an established principle or practice correctly. Where an appeal raises an important point of principle or practice that has not yet been determined, then it satisfies CPR 52.13(2)(a). But where the issue sought to be raised on the proposed appeal concerns the correct application of a principle or practice whose meaning and scope has already been determined by a higher court, then it does not satisfy CPR 52.13(2)(a). ‘In the phrase ‘some other compelling reason’: ‘Compelling’ is a very strong word. It emphasises the truly exceptional nature of the jurisdiction.’ The court gave the following definitieve guidance: ‘(1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice. In view of the exceptional nature of the jurisdiction conferred by CPR 52.13(2), it is important not to assimilate the criteria for giving permission for a first appeal with those which apply in relation to second appeals.
(2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant’s fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court’s mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.
(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether.


Tuckey, Dyson LJJ


Times 08-Feb-2005, [2005] EWCA Civ 60, [2005] 1 WLR 2070




Civil Procedure Rules 52.13(2)(a)


England and Wales


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CitedCranfield and Another v Bridgegrove Ltd; Claussen v Yeates etc CA 14-May-2003
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CitedPractice Direction on the Citation of Authorities LCJ 9-Apr-2001
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CitedTanfern Ltd v Cameron-MacDonald, Cameron-MacDonald CA 12-May-2000
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CitedAhmed v Stanley A Coleman and Hill CA 18-Jun-2002
The court considered the significance of CPR 52.13(2): ‘The restriction on second appeals is important because Parliament has made it clear that it wishes pretrial disputes in civil litigation to be dealt with, on the whole, at a level lower than . .
CitedBrown and Brown v Fenwick CA 4-Oct-2001
Renewed application for leave to appeal: ‘Quite how securely the door to the Court of Appeal should be shut by narrowly confining CPR 52.13(2)(a) to new points or principle, and precisely what the interrelationship is between (2)(a) and (2)(b), are . .

Cited by:

CitedThe Convergence Group Plc and Another v Chantrey Vellacott (a Firm) CA 16-Mar-2005
An accountant sought payment of his professional fees. The defendants had sought to re-amend their defence and counterclaim. Appeals had variously been allowed to go ahead or denied after the master had not been able to deal with all of them for . .
CitedCramp v Hastings Borough Council CA 29-Jul-2005
Cases challenged successful appeals by applicants for housing for homelessness, where a county court had ordered a second review of the application. . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Civil Procedure Rules

Updated: 29 June 2022; Ref: scu.222170