Simon Sinnatt was successful in the Court of Appeal on “an issue of jurisdiction on which there is no prior authority”.
The matter before the Court of Appeal concerned the following:
“The question arises in circumstances where a High Court judge (“HCJ”) refuses a first application for PTA from the County Court, on the papers and without an oral hearing, and considers the application to be totally without merit (“TWM”). In such a case, the normal right of an applicant for PTA to an appeal court other than the Court of Appeal to request the decision to be reconsidered at an oral hearing is disapplied by CPR rule 52.4(3), if the judge exercises the power under that paragraph to “make an order that the person seeking permission may not request the decision to be reconsidered at an oral hearing.” By virtue of paragraph (5) of rule 52.4, the applicant for PTA is expressly prevented from requiring an oral reconsideration (or “renewal hearing” as it is often termed) of an order made under paragraph (3). The question which we have to consider is whether the Court of Appeal nevertheless has jurisdiction to entertain an appeal against the paragraph (3) order, subject to the applicant being able to satisfy the stringent test for the grant of PTA on a second appeal: see CPR rule 52.7(2)”.
The Court of Appeal ruled that: “Parliament could not have intended to confer a freestanding right of appeal to this court from an order refusing an oral renewal hearing under CPR 52.4(3), in circumstances where such an order can only be made if the judge refuses an application for PTA and certifies it as TWM”. The refusal of the right to a renewal hearing was deemed an integral part of the refusal of PTA itself. Any further appeal was prohibited by section 54(4) of the Access to Justice Act 1999.
Simon Sinnatt submitted that, in cases of this extreme character which could be dubbed “”TWM plus”, the appropriate and only possibility of further recourse for the appellant should be an application to reopen his application for PTA under the truly exceptional jurisdiction conferred by CPR 52.30. The Court of Appeal accepted the submissions of Simon Sinnatt, agreeing that the only available option would be an application under CPR 52.30.
The Court of Appeal concluded that neither the refusal of PTA nor the TWM certification could ground an appeal to this court, so it would be paradoxical if the addition of an order refusing the right to an oral renewal hearing were to unlock the door to an onward appeal. Such a result would be wholly at odds with the obvious purpose of TWM certification, which is to prevent cases which are wholly unmeritorious from occupying further judicial time and scarce court resources.
Judgment available here.