2000/2202/A

Neutral Citation Number: [2001] EWCA Civ 425
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr M Kallipetis QC(sitting as a deputy High Court judge))

Royal Courts of Justice
Strand
London WC2

Monday 26th March, 2001

B e f o r e:

MR JUSTICE BENNETT

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ABDU MATIN
Claimant/Applicant

- v -

(1) ABDUL RASHID CHOUDHURY
(2) ABDUL MANNAN
(3) MAHMOOD AHMED
(4) ABU BAKAR
(5) BANA MEAH
(6) ABDUL MUTAHIR ALI
(7) HELAL UDDIN
(8) FERDOUS AHMED
(9) FAKHRUL ISLAM
Defendants/Respondents
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
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THE APPLICANT appeared on his own behalf, assisted by DR PELLING as a McKenzie Friend
THE RESPONDENT did not appear and was not represented
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J U D G M E N T
1.	MR JUSTICE BENNETT: This is a renewed application for permission to appeal. The facts of this matter are set out, firstly, in the judgment of May LJ on 15th January 2001 and, secondly, by Mr Michael Kallipetis QC on 15th May 2000. On 15th January 2001 Mr Matin did not appear personally to support his application, but Mr Sidoli, his McKenzie Friend, appeared on his behalf and, according to the judgment given by May LJ, put all the relevant arguments. 
2.	May LJ had initially considered this matter on paper on 31st July when he refused permission to appeal. An oral hearing was arranged for 23rd November 2000. Mr Matin was unable to attend that hearing and, as May LJ said, with some considerable reluctance he had to adjourn that application. 
3.	On 15th January 2001 Mr Matin did not appear. May LJ considered the matter. He decided the application for permission to appeal on its merits and refused permission. 
4.	Mr Matin appears in person today, and has succinctly put his submissions to me. He is also assisted by Dr Pelling as his McKenzie Friend. Dr Pelling has, it is plain, provided considerable assistance to Mr Matin in this matter. 
5.	I am extremely doubtful that I have any jurisdiction whatsoever to hear this application. May LJ, in the course of his judgment, referred to section 55 of the Access to Justice Act 1999 and the Civil Procedure Rule 52.13. He said: 
“The effect of that section and that rule is that only the Court of Appeal has power to give permission to appeal where it would be a second appeal, and permission will only be given if the case raises an important point of principle or practice or if the court considers that there is other reason why permission should be given. What I wrote on 31st July was that my view was this application raised no important point of principle or practice and, accordingly, permission would be refused in terms of Section 55 and CPR Rule 52.3.” 
6.	The learned Lord Justice then considered the matter with that in mind and came to the view that there were no grounds of appeal whatsoever that could be put forward. 
7.	At the end of his judgment he said this: 
“In my judgment, there is no proper basis for giving permission to appeal in this case. First and foremost, this would be a second appeal. It raises no important point of principle or practice and it does not come within the provisions of Section 55 of the Access to Justice Act 1999 nor CPR 52.13. It seems to me that neither the master nor the deputy judge made any error of law. These were entirely discretionary decisions which were open to them on the evidence and material before them. Mr Matin had indeed failed to comply with the unless order of 15th September 1999 and in those circumstances it was open to each of these judges to make the decisions which they did. It seems to me that the deputy judge did not apply a wrong test. The defendants were not obliged to attend on 15th May and that provides no grounds for appeal at all. It seems to me that there is no material for reaching any conclusion that Master Eyre was not impartial. Accordingly, it seems that this is an application which has no prospect of success whatever and in those circumstances I refuse the application.” 
8.	I therefore come to the conclusion that I have no jurisdiction to hear this application. However, in deference to Mr Matin's submissions, I would say that even if I had jurisdiction I would decline to exercise it in his favour. The matter was argued on behalf of Mr Matin by Mr Sidoli on 15th January and all points were put before May LJ, as have been put in front of me today. It is plain to me that Mr Matin is aggrieved by what has happened. But in my judgment there is nothing that this court can do, May LJ having made the decision that he did. 
9.	There are no further matters that could in any way justify me in allowing this matter to be reopened. Mr Matin has drawn my attention to the overriding objective in the Civil Procedure Rules and I am fully aware of that. He further draws my attention to the decision of the Court of Appeal in Chapple v Williams and Emmett, given on 8th December 1999, which is to the effect that the court should not impose a condition upon a litigant which he plainly could not comply with. 
10.	He then referred me to a legal aid certificate in connection with a wholly different matter. It would appear that certificate is dated August 1999, which he says he brought to the attention of Mr Kallipetis for the purpose of showing that he could not pay £60 in costs. I quote in answer to Mr Matin's submission a very short passage in the judgment of Mr Kallipetis:
“Mr Matin urged before me today that he had every intention of complying with it [that is the order that Master Eyre had made in which he had ordered Mr Matin to pay £60 costs to various defendants], but he has produced no evidence at all indicating his ability to pay, he certainly has not produced any evidence that he has offered to pay the defendants the costs which he was ordered to pay and there is no indication before me either that he has in fact, contrary to his assertions, any intention of paying the costs which the Master has ordered him to pay to the defendants in respect of the abortive hearings in front of the Master.” 
11.	For those short reasons, this application is dismissed. 
ORDER: Application for permission to appeal refused.
(Order not part of approved judgment)
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