A recent planning case which reached the Court of Appeal has raised an issue which will be of interest to litigators in all areas beyond planning law. The issue in question related to the definition of "appellant" within the context of the Civil Procedure Rules, specifically whether an individual or commercial entity that has not been a party to first instance proceedings has the locus standi to appeal a first instance decision to a higher court.
The case in question was "M A Holdings Ltd v George Wimpey UK Ltd and Tewkesbury Borough Council" [2008] EWCA Civ. 12 where the judgment of Lord Justice Dyson provided an informative review of the position both pre- and post-CPR.
The original dispute related to a property allocated for residential development by Tewkesbury Borough Council under a local plan. The owner of land not allocated for residential development (C) brought proceedings under section 287 Town and Country Planning Act 1990, objecting to the allocation of other land, including land belonging to A, for residential development.
The first instance judge allowed C's application on the grounds that the Council's decision to allocate A's site for residential development was irrational and that the local authority had not complied with the relevant policy guidance which required it to give adequate reasons for its decision. The judge consequently ordered that those parts of the local plan regarding the site be quashed. In other words, A's land was no longer to be redeveloped.
A took issue with this decision and served a notice of appeal. C objected, arguing that the court had no jurisdiction to allow an appeal by A, given that it had played no part in the first instance proceedings.
According to the judgment of Lord Justice Dyson, pre-CPR the court had jurisdiction to grant leave to appeal to a person adversely affected by a first instance decision. This jurisdiction was obtained from para. 59/3/3/ of the 1999 edition of the Supreme Court Practice, which provided that "in accordance with old Chancery practice, any person may appeal by leave (obtained on an ex parte application to the Court of Appeal), if he could by any possibility have been made a party to the action by service."
Reference was made to the case of "Warren v Uttlesford District Council" [1996] COD 262, another section 287 case, where it was held that "if the court believed that injustice might be perpetrated against a person or party with an interest in the outcome of section 287 proceedings... , the court should be able to come to the assistance of a person adversely affected and, among other remedies, permit him to join the litigation and be heard". However, the court added in that case that "this inherent jurisdiction was not available for use simply as a convenient tag to permit intervention. As it was impossible to envisage the wide variety of circumstances in which the court might feel it appropriate to act under its inherent jurisdiction, in the context of an application under 287, the court would add simply that it would be a very rare case indeed...".
It is not clear whether in cases not relating to s287 applications, the court would only have exercised this jurisdiction very rarely. However, its discretion in this regard would in any event have been limited to cases where the non-party seeking to appeal had an interest in and was adversely affected by a lower court decision.
Post-CPR, the relevant provision is to be found in CPR 52.1 (3) (d) which defines "appellant" as "a person who brings or seeks to bring an appeal". CPR 52.1(3) (e) defines "respondent" as "(i) a person other than the appellant who was a party to the proceedings in the lower court and who is affected by the appeal; and (ii) a person who is permitted by the appeal court to be a party to the appeal."
Lord Justice Dyson pointed out that the word "person" in rule 52.1(3) (d) was not qualified by the words "who was a party to the proceedings in the lower court". Had the legislators intended such an interpretation, then the draftsman would have stated this expressly.
As regards the definition of respondent, Lord Justice Dyson interpreted the two limbs of rule 52.1(3) (e) to be in the alternative; in other words, a respondent would either be a party other than the appellant (author's emphasis) to the proceedings in the lower court or someone who is permitted by the appeal court to be a party to the appeal. Therefore, a person may be a respondent in an appeal without having been a party to the lower court proceedings. Furthermore, the reason for adding the word "other than the appellant" was to exclude the appellant from this definition of respondent.
Lord Justice Dyson added that it would be surprising if the position were different, particularly as that would mean that the CPR rules as to who might be an appellant would be more restrictive than the corresponding rules in the pre-CPR era and could work a real injustice. Furthermore, it would be inherently unlikely in the light of the CPR's overriding objective of enabling the court to deal with cases justly. It would also be strange if a respondent could seek permission to appeal even if he had not been a party to the proceedings in the court below, but that the appellant could not do so.
In "M A Holdings Ltd v George Wimpey UK Ltd and Tewkesbury Borough Council", it was reasonable for A to assume the local authority would appeal and to seek to appeal when the local authority did not do so. A was not an interfering busbody but an interested party, so that if an appeal had real prospects of success, it would be unjust to deny A that right of appeal. The Court of Appeal therefore exercised its discretion to grant permission to appeal.
The case highlights the potential for an interested party, though one that was not party to the original action, to appeal a judgment in which it was interested. However, the grounds on which this is permitted remain narrow: the party will only be eligible "if he could by any possibility have been made a party to the action by service", so clearly he must have an interest in the specific subject matter of the action and not simply in the issue of law involved. However, it will be interesting to see how far this rule can be used outside the narrow confines of planning applications.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
