Case No: C4/2010/2189
Neutral Citation Number: [2011] EWCA Civ 269
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT 
QUEEN’S BENCH DIVISION, ADMINISTRATIVE COURT
The Hon Mr Justice Silber 
CO/4321/2010
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/03/2011
Before :

THE MASTER OF THE ROLLS
LORD JUSTICE HOOPER
and
LORD JUSTICE RIMER 
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Between:

	THE QUEEN on the application of MEDICAL JUSTICE	Respondent	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Appellant	

(Transcript of the Handed Down Judgment of
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Clive Lewis QC and Joanne Clement (instructed by Treasury Solicitor) for the Secretary of State
Emma Dixon (instructed by Public Law Project) for Medical Justice

Hearing date: 23rd February 2011
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Judgment

Lord Neuberger MR: 
1.	This case comes before us as an appeal against, or an application to vary, the terms upon which Silber J gave the Secretary of State for the Home Department permission to appeal against his decision granting Medical Justice’s application for judicial review -  [2010] EWHC 1925 (Admin).
2.	Medical Justice is a small charity which facilitates the provision of independent advice and representation to those detained in immigration removal centres. It is represented in these proceedings by Public Law Project (“PLP”), a national charity which aims to improve access for the disadvantaged to public law remedies. 
3.	On 15 April 2010, His Honour Judge Thornton QC, acting as a Deputy High Court Judge, permitted Medical Justice to seek judicial review of an aspect of the Secretary of State’s policy relating to the giving of notice of removal from the United Kingdom. The particular aspect at issue was the alleged absence of any or sufficient notice to certain classes of individuals, including unaccompanied children, and those at risk of suicide and self-harm. In his decision, which was made on the papers and without submissions from the Secretary of State, Judge Thornton also ordered that Medical Justice was “to be subject to a protective costs order save for costs incurred against it up to a capped limit of £5,000”.
4.	The Secretary of State applied to vary that order, and, on 20 May 2010, Cranston J varied the protective costs order (“PCO”) by adding a limitation on the costs recoverable by Medical Justice, if an order for costs was made against the Secretary of State – [2010] EWHC 1425 (Admin). That limitation provided that the hourly rates for leading and junior counsel were to be pegged to Treasury counsels’ hourly rates, subject to an appropriate uplift, or success fee, being also allowed. In the event, the success fee was fixed at 43% of the pegged hourly rates.
5.	The case then proceeded to a hearing, which culminated in Silber J’s judgment in favour of Medical Justice. In the normal way, he awarded Medical Justice its costs, which included its “uplifted” leading and junior counsels’ fees based on hourly rates of 143% of Treasury counsel’s rates. 
6.	Following this, there was a contested hearing of the Secretary of State’s application for permission to appeal, where the argument concentrated, albeit not exclusively, on the terms on which such permission should be granted. Silber J granted the Secretary of State permission to appeal, but only on terms that, whatever the outcome of the appeal, (i) the order for costs which he had just made in respect of the proceedings so far remained undisturbed, and (ii) the Secretary of State would pay Medical Justice’s costs of the appeal.
7.	The Secretary of State was unhappy with the terms upon which she had been granted permission to appeal by Silber J, and she now challenges those terms. In my judgment, however, although the point was not made by either party and there are cases in which this court has proceeded on the basis of a contrary view, that is not the right approach for a prospective appellant to adopt in these circumstances. 
8.	Where a first instance judge (a “judge”) grants a party permission to appeal on terms, and the party is unhappy with those terms, he has three options. The first is to abandon the prospective appeal; the second is to accept, no doubt reluctantly, the terms; the third course is to treat the conditional permission as a refusal of permission to appeal, and to make a fresh application for permission to the appellate court. What the party concerned cannot do is to treat the permission to appeal granted by the judge as tucked under his metaphorical belt, and seek to improve his position by appealing to the appellate court against some or all of the terms.
9.	It seems to me that this conclusion follows from the statutory and regulatory provisions governing permission to appeal.
10.	Section 54 of the Access to Justice Act 1999 is concerned with “permission to appeal”. Section 54(1) provides that “[r]ules of court may provide that any right of appeal … may be exercised only with permission”. Section 54(4) states that:
“No appeal may be made against a decision of the court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).”

11.	CPR 52 is the rule concerned with appeals, and CPR 52.3 provides that, in general, permission to appeal is required in the great majority of cases, including the present. CPR 52.3 states, so far as relevant, that:
 “(2) An application for permission to appeal may be made –
(a) to the lower court at the hearing at which the decision to be appealed was made; or
(b) to the appeal court in an appeal notice.
….
 (3) Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court.
(4) Subject to paragraph (4A), where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing.”

12.	CPR 52.9 provides as follows:
“(1) The appeal court may –
(a)	strike out the whole or part of an appeal notice;
(b)	set aside permission to appeal in whole or in part;
(c)	impose or vary conditions upon which an appeal may be brought.
(2)	The court will only exercise its powers under paragraph (1) where there is a compelling reason for doing so.
(3)	Where a party was present at the hearing where permission was given he may not subsequently apply for an order that the court exercise its powers under sub-paragraphs (1)(b) or (1)(c).”

13.	Where a party seeks permission to appeal from the judge, and is granted such permission on terms, I find it very hard to see how the terms could be appealed in the light of the substantive part of section 54(4) of the 1999 Act. There is, in such a case a single, albeit in a sense a composite, “decision” to grant permission to appeal, and any attempt to appeal that decision appears to me to be pretty clearly prohibited by the section. I have difficulty with the notion that an appeal against part of the single, or composite, decision could be entertained: either the decision is appealable or it is not, and section 54(4) says that it is not.
14.	As for CPR 52.9(1)(c), it seems to me that it gives the appeal court the power to vary the terms on which permission has been given, and that it applies to cases where permission has been given by the judge as well as to cases where such permission has been given by the appeal court. However, CPR 52.9(3) provides that CPR 52.9(1)(c) can only be invoked by a party who was not present at the hearing where the terms were imposed. That appears to be intended to tie in with section 54(4): if a party who had attended the hearing before the judge, at which permission to appeal had been given on terms, could apply to the appeal court for variation of those terms, the rule would at least conflict with the spirit of the statutory provision, as the application would really amount to an appeal. 
15.	On the other hand, CPR 52.9 seems implicitly to assume that a party, who was invoking CPR 52.9(1)(b) or (c) and who had not been present at the hearing at which the terms were imposed by the judge, would not be appealing against the decision to impose terms: he would be seeking to advance its case for the first time. In his judgment, which I have seen in draft, Rimer LJ has raised the point that it may be that, to the extent that the CPR 52.9(3) purport to permit a party, who was not present when the judge granted permission to appeal, to invoke CPR 52.9(1)(b) and (c), it is ultra vires in the light of section 54(4). 
16.	It may be that the answer to the point is that, because the appeal court has under CPR 52.3(2)(b) an original jurisdiction in relation to permission to appeal, an application under CPR 52.9(1)(b) or (c) would not be treated as an appeal. However, I do not think that it would be appropriate to decide that point now, as it is not easy, we have not heard argument on it, and it is unnecessary to decide it in these proceedings. If this point is a good one, then, as Hooper LJ mentioned in argument, the party concerned would, at least as I see it at present, not be without any remedy: he could apply to the judge to reconsider the terms, as he will not have had the opportunity of addressing the judge on the terms.
17.	Accordingly, where, as here, permission to appeal is given on terms by the judge, the prospective appellant cannot appeal against those terms, as he would, at least almost always, have been “present at the hearing where permission was given”. The prospective appellant in such a case is put to his election: either he accepts those terms, in which case he has permission to appeal, albeit on those terms, or he treats the conditional permission as a refusal, and pursues a fresh application to appeal to the appropriate appeal court, as contemplated by the bracketed part of section 54(4). 
18.	(If the prospective appellant chooses the latter course, and the appeal court refuses permission to appeal or imposes more onerous terms than the judge, I think we should leave open the question whether the prospective appellant should be treated as having irrevocably elected to treat the first instance conditional grant of permission to appeal as a refusal of permission. The point was not discussed before us and is unnecessary for us to decide at least at this stage of the proceedings. However, at the moment, I incline to the view that a prospective appellant will be treated as having elected at the latest by the time its renewed application is disposed of by the appeal court. What would otherwise happen if the judge granted permission on terms, and, on the application to the appeal court, permission was refused?) 
19.	This conclusion avoids the rather unnatural interpretation which this court felt constrained to give to CPR 52.9 (2) and (3) in three decisions to which we referred, Societe Eram Shipping Co Ltd v Compagnie Internationale de Navigation [2001] EWCA Civ 568, para 18, King v Daltray [2003] EWCA Civ 808, paras 14-18, and Kuwait Airways Corporation v Iraqi Airways Company [2005] EWCA Civ 934, paras 73-82. In those cases, this court proceeded on the basis that it could entertain an appeal against the terms on which the judge granted permission to appeal. 
20.	Eram [2001] EWCA Civ 568, the court was not concerned with an application for permission to appeal, and, in any event, Rix LJ only expressed his view on the point at issue in a very tentative way. In King [2003] EWCA Civ 808, the Court of Appeal was not referred to section 54(4), and it was not argued that the appropriate course for the prospective appellant was to seek permission afresh from this court. Sedley LJ relied on the requirement that a party has access to an appeal court, but in my view that requirement is satisfied by a prospective appellant being able to invoke CPR 52.3(3). He also made the point, albeit very shortly, that the appeal against the terms imposed could be treated as a fresh application for permission – see [2003] EWCA Civ 808, para 19.
21.	Although the issues in Kuwait [2005] EWCA Civ 934 did include consideration of a term imposed by the trial judge as a condition of permission to appeal, the decision in King [2003] EWCA Civ 808 was relied on and followed, although section 54(4) was cited, and clearly (and rightly) caused the court some concern, as did CPR 52.9(2), and, even more, CPR 52.9(3). Again, the court was strongly influenced by the thought that if there was no appeal against the terms imposed by the judge, the prospective appellant would be denied access to the Court of Appeal, but, as already mentioned, that ignores CPR 52.3(3).
22.	In my view, Eram [2001] EWCA Civ 568 and King [2003] EWCA Civ 808 should not be followed, as section 54(4) was not cited, and no consideration was given to the point that the prospective appellant would have access to the Court of Appeal through making a fresh application for permission to appeal, and there is the additional factor in the former case that the point was merely discussed. In Kuwait [2005] EWCA Civ 934, section 54(4) was cited, but the court felt it right to follow King [2003] EWCA Civ 808, and no consideration was given to the fact that the prospective appellant could apply afresh to the court of appeal.
23.	The conclusion that a prospective appellant who is dissatisfied with the terms imposed by the judge is effectively put to its election derives some indirect support from the decision of the House of Lords in Ceredigon County Council v Jones [2007] UKHL 24, [2007] 1 WLR 1400. In that case, the Council had lost on two points at first instance, and the judge gave permission to appeal to the Court of Appeal, and also a “leapfrog certificate” (i.e. a certificate permitting the Council to appeal direct to the House of Lords), in relation to both points. In order for the Council to be able to leapfrog, the House’s permission was also required, and it decided to give permission only on one of the two points. The House of Lords held that, in those circumstances, the Council could take one of two courses: either it could opt to accept the House’s terms and appeal to the House of Lords on the one point and abandon its case on the other, or it could opt to decline the House’s terms, and take up the permission to appeal to the Court of Appeal on both points. 
24.	Viewed as a matter of policy, the notion that a prospective appellant who wishes to challenge the terms on which the judge grants permission to appeal should be required to apply to the appeal court for permission rather than challenging the terms, appears to me to be sensible. If the judge grants permission on terms which are unacceptable to the prospective appellant, and the issue is brought to the appeal court, it seems appropriate that that court should be able to reconsider all aspects of the issue of permission to appeal, and not just those terms to which the prospective appellant objects. The fact that a prospective respondent who is dissatisfied with the terms cannot challenge them by referring the issue to the appeal court unless it has had no opportunity to be heard by the judge, is consistent with the principle that the question of permission to appeal is essentially a matter between the prospective appellant and the court: hence applications for permission to appeal are almost always ex parte.
25.	It may be objected that if a dissatisfied prospective respondent cannot appeal the terms which the trial judge imposes, it would be unfair in the case of a respondent who wishes to be granted greater protection under a PCO than that provided for by the terms imposed by the trial judge. The answer to that point is that such a respondent can apply to the appeal court for an appropriate PCO in relation to the costs of the appeal. 
26.	If a renewed application is made to the appeal court in circumstances where the prospective appellant is dissatisfied with the terms imposed by the judge, the fact that it is hearing a fresh application will not prevent the appeal court from taking into account the judge’s decision to grant permission to appeal, as well as his view as to any appropriate terms. Obviously, the weight to be given to the judge’s decision and view will vary from case to case. However, in many cases, the appeal court may well think that, as the trial judge, he was in a particularly good position to assess the appropriate terms to impose on any permission. Nonetheless, as what is before the appeal court is a fresh application, that court must ultimately form its own view as to whether to grant permission to appeal, and, if so, on what terms.  
27.	That brings me to the present appeal. It has proceeded on the wrong basis, and there is therefore only a limited amount of assistance we can give at this stage. How should matters proceed from here? The first question is for the Secretary of State: does she wish to reject (at least for the moment – see the point I have left open at para 18 above) the conditional permission to appeal granted by Silber J? If she does, then she must make an application for permission to this court under CPR 52.3(3); such an application would be out of time, but, in the light of the way matters have proceeded in this case and the three previous cases, I would take a great deal of persuading that Medical Justice could take any point on that – at least provided the Secretary of State now proceeds expeditiously. If such an application is made, then we will consider it on its merits, if possible with the same constitution, as we have heard much of the arguments on the terms.
28.	It is, however, right to make three points about the terms on which any appeal against the substantive decision of Silber J would be permitted to proceed, if an application for permission was made by the Secretary of State and if we were minded to grant permission to appeal. 
29.	First, it is very likely indeed that we would impose terms as to costs. The reasons that Cranston J and Silber J thought it right to give Medical Justice significant costs protection seem clearly to apply with equal force in relation to an appeal. The notion, advanced by Mr Clive Lewis QC for the Secretary of State, that Medical Justice should find counsel prepared to act pro bono does not seem to me realistic or fair on advocates or charities: if we acceded to it, the argument could successfully be raised in every worthy case. 
30.	Secondly, if a PCO is made in respect of the costs of any appeal, I find it very hard to accept that Medical Justice’s counsels’ fees should not be capped at the level at which they were capped below, namely Treasury counsel rates. Just as it is unfair on advocates for the court to expect them to work for nothing (although I hope, indeed I expect, that most advocates do in an appropriate case), so it seems to me simply inappropriate for an advocate to seek a PCO for her client at the expense of the opposing party, when she is seeking to recover her fees at full commercial rates from the opposing party. Many advocates are paid very well when employed on commercial cases, and so they should be: market forces should, at least to a substantial extent, apply in such cases. But the applicability of such market rates is often simply inappropriate in cases of this sort, and particularly where they are being asked for where the client is to have the protection of a PCO. As this court explained in R(Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600, para 76, if a PCO is granted in favour of  a party, it is (at least normally) right “as a balancing factor” also to restrict the extent to which that party can recover its costs “to a reasonably modest amount”.
31.	Thirdly, as Ms Emma Dixon accepted, in her concise and attractive submissions on behalf of Medical Justice, it would be plainly inappropriate for counsel for Medical Justice to enjoy any uplift in their hourly rates if, as Silber J thought right, the Secretary of State was required to pay Medical Justice’s costs of the appeal in any event. In such a case, counsel representing Medical Justice on the appeal would be sure of receiving their fees, and there would be no possible justification for a success fee.
32.	Apart from these points, there is nothing further which we can properly or usefully say at this stage on the merits of any application for permission to appeal by the Secretary of State, should it be made. 
33.	I would invite the parties to agree a timetable as to how matters should proceed from here, and to communicate what they have agreed (or failed to agree) to the court within five days of receipt of this judgment. 
34.	It is right to add this. Silber J thought it right to give permission to appeal, there has been a hearing before us at which the possible terms on which permission might be granted were discussed fairly fully, and some pretty clear indications about some possible terms have been given in this judgment. Accordingly, it may be that the parties will be able (i) to agree whether permission to appeal should be given and if so on what terms (in which case it is highly likely that we will approve what has been agreed, or (ii) to deal with any areas of disagreement by written submissions alone, or (iii) at least to agree a very short time estimate for any hearing.  
Lord Justice Hooper:
35.	I have read in draft the judgments of Lords Neuberger MR and Rimer LJ, and I agree with them both.
Lord Justice Rimer: 
36.	I have had the advantage of reading in draft the judgment of Lord Neuberger MR and respectfully agree with his proposed disposition of the Secretary of State’s appeal against the conditions imposed by Silber J in giving permission to appeal.
37.	This court’s jurisdiction to entertain an appellant’s challenge to the conditions upon which a judge in the lower court has given permission to appeal turns on a consideration of section 54(4) of the Access to Justice Act 1999 and CPR Parts 52.9 and 52.3(3). As to section 54(4), I do not accept that it permits the grantee of a conditional permission to accept the permission and to advance an appellate challenge to the fact or nature of its conditionality. A conditional permission to appeal is in my view properly to be regarded as a single composite decision and a challenge to any element of it is a challenge to such decision. Such a challenge is precluded by section 54(4). This court, in entertaining a ‘conditions’ appeal in King v. Daltray [2003] EWCA Civ 808, was not referred to section 54(4) and I agree with Lord Neuberger, for the reasons he gives, that we should not follow King. 
38.	CPR Part 52.9(1)(c) empowers the ‘appeal court’ to impose or vary conditions upon which an appeal may be brought. Part 52.9(2) provides that the court will only exercise its powers under paragraph (1) ‘where there is a compelling reason for doing so.’ Paragraph (3) provides that:
‘Where a party was present at the hearing at which permission was given he may not subsequently apply for an order that the court exercise its powers under sub-paragraphs (1)(b) or (1)(c).’
39.	I can see no reason why, upon the ordinary interpretation of the language of Part 52.9, paragraph (1)(c) does not purportedly extend to the variation of conditions imposed by the lower court as much as to variations of conditions that the appeal court itself imposed when giving permission to appeal. In the present case, however, the appellant is precluded by paragraph (3) from making an application under paragraph 1(c). If she were not so precluded – because she had not been present at the permission hearing in the lower court – there would in my view (and if paragraph (1)(c) has the breadth of range I have suggested) then be a question as to whether it is to any extent ultra vires as purportedly conferring a right of appeal precluded by section 54(4). That is because I consider there would be force in the view that she would, in substance, be appealing against the conditional permission. Since, however, that question does not arise for decision in this case, I express no opinion as to the answer to it.
40.	In my judgment, as it was not open to the appellant to appeal against Silber J’s conditions or to apply for their variation under Part 52.9(1)(c), the only course open to her was and is to treat the conditional permission as a refusal and to apply to this court afresh for permission under Part 52.3(3). I recognise that it can be said that, on the face of its language, the giving by the court below of a conditional permission might be said to preclude such an application under Part 52.3(3). But I agree with Lord Neuberger that it is that provision that provides the gateway that the appellant requires.