Tuesday law report: Single application for leave to appeal

4 May 1999 Dixon v Allgood Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Robert Walker and Lord Justice May) 14 April 1999
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The Independent Culture
APPLICATIONS FOR leave to appeal from separate decisions given on different days in the same case might be made in a single application.

The Court of Appeal allowed the appellant's appeal against a judicial decision made in correspondence by the Deputy Registrar of Civil Appeals requiring him to make separate applications for leave to appeal against different orders made in the same proceedings.

The appellant had commenced proceedings in which there had been a number of interlocutory hearings. He wished to appeal against two interlocutory costs orders, made on 18 October 1991 and 6 December 1996. Since the appeals were against orders for costs only, he needed leave to appeal.

The practical consequence of the Deputy Registrar's decision that two applications were necessary was that the appellant had had to pay two fees of pounds 100 each.

The appellant appeared in person.

Lord Justice May said that the Deputy Registrar's decision had been made by reference to what was now paragraph 59/3/26 of the Supreme Court Practice 1999 which was headed "Appeals against more than one order - multiple notices of appeal". The note referred to the decision of the Court of Appeal in Hawes v Chief Constable of Avon and Somerset Constabulary (The Times, 20 May 1993), in which it was held that separate notices of appeal were not required for appeals against orders made in the same proceedings at the same trial or hearing.

The note, however, continued that where "an appellant wishes to appeal against orders made in different actions (even if tried together) a separate notice of appeal will be required in respect of each action. Likewise if orders are made in one action, but not at the same trial or hearing, separate notices of appeal will still be required."

The appellant submitted that the note in the Supreme Court Practice was editorial only and was not supported by the court's judgment in Hawes, and that, on the contrary, a requirement for separate notices of appeal or separate applications for leave to appeal from interlocutory orders made in the same case would be unnecessary and wasteful even if the orders were made on separate occasions.

Further, he submitted that the rule to which the note referred did not support the comment. Order 59 rule 3(2) of the Rules of the Supreme Court provided: "Notice of appeal must be given either in respect of the whole or in respect of any specified part of the judgment or order of the court below and every such notice must specify the grounds of the appeal and the precise form of the order which the appellant proposes to ask the Court of Appeal to make."

That did not address, nor did it come close to addressing, the question whether a single notice of appeal might include appeals from two or more orders made in the same case but on different occa-sions. The expression in sub-rule (2) "any specified part of the judgment or order of the court below" did not compel a conclusion that a notice of appeal had to be limited to a judgment or order made on a single occasion.

The appellant's case was concerned, not with one or more notices of appeal, but with applications for leave to appeal. The part of Order 59 which dealt with applications was rule 14. There was no editorial note to rule 14 equivalent to paragraph 59/3/26, and there was nothing in rule 14 which helped to answer the question raised by the appellant.

The case of Hawes did not address the question which was before the court in the present case. There was no relevant rule which dictated the answer and certainly no rule which compelled the conclusion stated in the last sentence of the editorial comment referred to above. There was no reason of substance or practice why two applications for leave to appeal from separate decisions given on different days in the same case had to be made on separate pieces of paper. There was every reason of economy why they should be made in a single application.

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