Court exercises rare power to set aside permission to appeal due to misrepresentation

28 Feb 2013

Golds v Henson [2013] EWHC (tbc) QB

Dean Underwood has continued his run of good form in the appellate courts, this time successfully opposing an appeal brought in the Queen’s Bench Division of the High Court.

Indeed, in a rare exercise of its power under CPR 52.9, the court set aside permission to appeal on the premise that the judge granting permission had been misled by the appellant.

The appeal had been brought by one of two landlords named in an agreement granting Dean’s client, Ms Henson, an assured shorthold tenancy of a residential flat.  Ms Henson had been evicted unlawfully from the flat and had brought a claim against both of her landlords, Mr and Mrs Blackwood, for damages and an injunction.  Mr Blackwood filed and served a defence to the claim but Mrs Blackwood, despite acknowledging receipt of it in correspondence, had not done so and took no part in the proceedings.  Ms Henson obtained judgment against both Mr and Mrs Blackwood in November 2010, after Mr Blackwood’s defence had been struck out.  The amount of damages and costs to which she was entitled was not assessed, however, until June 2012.

In late 2012, Mrs Blackwood, in the name of Ms Golds, filed an appeal, ostensibly against the order of June 2012 by which the damages and costs had been quantified.  The crux of her complaint, however, was not that the award of damages and costs was susceptible to challenge but that she should never have been liable to Ms Henson in the first place because, in summary, she had never held an interest in the flat, was not a knowing party to Ms Henson's tenancy agreement, had no agreement with the managing agents and had taken no part in the unlawful eviction.  

In her appellant's notice, she sought an extension of time for her appeal but had made a number of representations, including statements (here paraphrased) to the effect that:

(a) the relevant order to appeal was that dated June 2012;

(b) she had never been known by the name of Blackwood;

(c) she had never received correspondence or court papers in her known name of Golds, whether individually or jointly with Mr Blackwood; and

(d) she had not been invited to take part in court hearings.

MacDuff J had considered her applications for an extension of time and for permission to appeal on the papers and, in late 2012, had granted permission to appeal.

Ms Henson opposed the appeal and, indeed, applied to set aside permission to appeal under CPR 52.9, on one of the two principal grounds for doing so, i.e. that the court had been misled by Ms Golds.  

In particular, it was argued:

(a) the relevant order under challenge was not the order of June 2012 but the order establishing Ms Golds’ liability to Ms Henson, dated November 2010;

(b) Ms Golds clearly had been known by the name of Mrs Blackwood, not least because she had – or had once had – an email account in the name of Blackwood;

(c) court papers and correspondence had properly been served on and sent to Ms Golds in her then-known name of Blackwood;

(d) she had acknowledged receipt of the claim in correspondence and evidently knew to whom it was addressed; and

(e) in view of the above, statements made in her appellant’s notice, including a statement that she had never been invited to court hearings, were patently and materially misleading.

After a morning’s hearing on 28 February 2013, Leggatt J agreed.  Permission to appeal was set aside and refused.  Leggatt J recorded that the appeal was totally without merit and ordered Ms Golds to pay Ms Henson's costs of the appeal.