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The Court of Appeal Considers When An Unsuccessful Litigant Must Accept “No” For An Answer

Isabella Tafur

The Court of Appeal has today handed down judgment in R(on the application of Wingfield) v Canterbury City Council [2020] EWHC 1975 (Admin).

The case concerned two applications to re-open the refusal of permission to appeal pursuant to CPR 52.30 in two separate cases relating to the grant of planning permission for housing development in Canterbury. The Claimant had challenged those decisions by way of judicial review on the basis of alleged deficiencies in the Council’s approach to EIA and Habitats assessments. These were the second applications to re-open made by the Applicants, following a previous refusal to re-open by the Court of Appeal.The Court of Appeal accepted the submissions of Canterbury City Council and the Interested Parties that the applications were, in substance, a backdoor attempt to do that which is impermissible under CPR 52.30(7), namely to appeal or review the first refusal to re-open. It was plain from the applications that the limited jurisdiction to re-open a final determination was still not properly understood in all quarters despite the clear message which the Court had sought to convey in Goring-on-Thames Parish Council v South Oxfordshire DC [2018] EWCA Civ 860. The Court issued a stark warning to legal representatives to refrain from persistent, meritless applications, and suggested that the principles relating to professional misconduct (considered in R. (on the application of Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin) and Gubarev v Webzilla and another [2020] EWHC 2167) may be relevant in such cases. 

The Court found that in refusing permission to appeal, Lewison LJ had properly engaged with the Applicant’s grounds and he had been under no obligation to refer the cases to the CJEU where there was, in reality, no point of European law that required determination or where any such point would have made no difference to the outcome of the case.

A copy of the judgment can be found here.

Isabella Tafur acted for Canterbury City Council in resisting the applications.