An interesting point

When is an appeal not an appeal? The answer, it seems, is when it is an application for a rehearing, according to the Court of Appeal in Turner v Turner [2008] EWCA Civ 280. The case concerned ancillary relief proceedings in one of my local courts, Dartford County Court, in which District Judge Glover made an order in 2004 that required a charge to be executed by the husband. More than three years later the question of the form of the charge had not been resolved, so the district judge of his own motion made an order that it was to be executed within 28 days, in a form which he had approved. Mr Turner objected to the form of the charge, and therefore appealed to the circuit judge, who then ordered that his notice of appeal stand as an application for a rehearing of the order made by District Judge Glover. Mr Turner then sought permission to appeal to the Court of Appeal against that order.

In the Court of Appeal Mr Turner was assisted by the ubiquitous McKenzie friend Dr Pelling who, as Lord Justice Wall admitted, put forward the persuasive arguments that the circuit judge had no jurisdiction to order his appellant's notice to stand as an application for rehearing by the district judge (thereby denying him the statutory right to appeal) and that there was really no point in going back to the district judge because the district judge had made up his mind. Lord Justice Wall, however, rejected those arguments, finding that the circuit judge was entitled to make the order that she did, as she was exercising the powers given to her under the overriding objective (under Rule 2.51D) of enabling the court to deal with cases justly, as she considered that the district judge should have had a hearing - the order made at that hearing would give Mr Turner something which he could then appeal to her in the normal way.

At first sight this all seems quite odd, having to go through the charade of a hearing before a district judge who had already made up his mind, but Lord Justice Wall pointed out that: "The practical choices for this court are either to give permission today, which would result in a further hearing and then a remission either to the circuit judge or to the district judge; or to refuse permission, in which case Mr Turner would be left to his remedies to go back to the district judge, and if the district judge retains his current position then he will have to appeal." Perhaps the most sensible course of action after all?

Comments