How (Not) to Consider Permission to Appeal and Applications to Re-Open Appeals: UCP Plc v Nectrus Ltd [2022] EWCA Civ 949 - Sebastian Bates, Temple Garden Chambers
22/08/22. In UCP plc v Nectrus Ltd [2022] EWCA Civ 949, the Court of Appeal addressed 'the circumstances in which judges should accede to an application to recuse themselves, and the process adopted in the Court of Appeal when parties apply to set aside permission to appeal and, separately, to re-open the final refusal of permission to appeal under CPR Part 52.30'.
Facts
Nectrus applied to the Court of Appeal for permission to appeal (PTA) from the High Court. Flaux LJ granted permission to appeal on a single ground, but recorded on the form that the matter was to be referred back to him after the Supreme Court ruled in Marex v Sevilleja [2020] UKSC 31; [2021] AC 39. He described his grant of PTA as ‘contingent’.
The Supreme Court subsequently gave judgment in Marex, reversing the judgment against which Flaux LJ had tested the High Court’s reasoning. Nectrus’ solicitors requested confirmation of PTA; UCP’s solicitors invited refusal of PTA. Faced with these written submissions, Flaux LJ decided on the papers to refuse PTA on 24 July 2020.
Nectrus’ solicitors wrote to the Civil Appeals Office on 28 July 2020, stating that they intended to apply to set this order aside under CPR 3.3(5) and requesting an extension of the seven-day time limit for this. They indicated that they would also be applying, in the alternative, under CPR 52.30. On 30 July 2020, the Office emailed that Flaux LJ had directed that any application would have to be served by 4pm on 31 July 2020.
An application under CPR 3.3(5) was made. This was refused without being issued.
Nectrus went on to make an application under CPR 52.30, accompanied by a skeleton argument and a request that the application be heard by a judge other than Flaux LJ. He nevertheless held an oral hearing on this application and dismissed it.
The Judicial Committee of the Privy Council then gave a judgment, in Primeo Fund v Bank of Bermuda [2021] UKPC 22, that indicated that Flaux LJ had been wrong to...
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