Home > Cases > Court of Appeal answers the question: When must an unsuccessful litigant accept ‘No’ for an answer?

In a detailed Judgment considering the scope of the jurisdiction to re-open refusals of permission to appeal (under CPR 52.30), the Court of Appeal has today given strong warnings as to the exceptionally high threshold for such applications.  The applications under consideration were in fact second applications which the Council and Interested Parties contended, and the Court accepted, were “in substance a backdoor attempt to do that which is impermissible under CPR 50.30(7), namely appeal or review the decision refusing permission to re-open the refusal of permission to appeal in each case.

The Claimant sought (for a second time) to re-open refusals of permission to appeal by Lewison LJ in relation to two decisions of Mrs Justice Lang dismissing applications for judicial review into planning decisions for two adjacent housing sites close to European designated site (Stodmarsh Special Protection Area and Special Area of Conservation) near Canterbury.  The Claimant contended that the decisions of Lewison LJ were ultra vires and involved infringements of EU law (the EIA and Habitats Directives) and that this was sufficient to justify the Court exercising its jurisdiction to re-open under CPR52.30.

The Claimant’s contentions were conclusively dismissed.  The Court re-iterated the principles applicable to applications under CPR52.30 set out in Goring-on-Thames Parish Council v South Oxfordshire District Council [2018] EWCA Civ 860.   The Court found no infringement of EU law in the Judgments under challenge and, even if there had been any such infringement that would not have been sufficient to justify a re-opening.  The Court concluded as follows:

“In this case the applicant has not established that it is even arguable that either of Lewison L.J.’s decisions, let alone Lang J.’s decisions, involved an infringement of any of the provisions of EU law. But even had she done so, that would not have been good enough to satisfy the test for re-opening the question of permission to appeal. The integrity of the earlier proceedings was not undermined in any way. There is no question of Lewison L.J.’s decisions being ultra vires, and the applicant has failed to establish that, even if –contrary to our findings – her individual points were right, the outcome would or might have been different. There is no injustice to the applicant involved in refusing her a fourth or fifth attempt to gain the result she seeks, let alone the “grave injustice” required to overcome the pressing claim of finality in litigation.”

Jenny Wigley represented one of the Interested Parties, HNC Developments, in both the Court of Appeal and the High Court.  See here for a copy of the Court of Appeal Judgment and here for the High Court Judgment.

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