England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT AND DIVISIONAL COURT
(MR JUSTICE LAWRENCE COLLINS)

		Royal Courts of Justice Strand London, WC2 Thursday, 28th November 2002

1. LORD JUSTICE KENNEDY: On 23rd July 2002 Lawrence Collins J, sitting in the High Court of Justice, considered an application brought before him under the first schedule to the Films Act 1985 by Peakviewing Interactive Limited and others in relation to a decision of the Secretary of State refusing to grant certificates under that Act certifying that certain films were British films, such certificates being of value to the applicants because they would have enabled the them to have obtained certain capital allowances.
2. The proceedings were brought under a specific statutory power, as set out in paragraph 9 of Schedule 1 to that Act, which provides as follows:

"Any person who is aggrieved by any decision of the Secretary of State to refuse an application under paragraph 2 or to revoke any certification under paragraph 3(1) may, subject to rules of court, apply to the High Court, and the decision of that Court shall be final."

At the end of the hearing an application was made to Lawrence Collins J for permission to appeal to the Court of Appeal. Unfortunately, at that time neither counsel nor the judge had in mind the provisions of paragraph 9(1) because at that stage no submissions were addressed to the judge as to whether he had power to grant permission, and the judge granted permission.

3. The matter in due course came before Master Venne, who recognised that the permission granted might, in the circumstances, not be effective, having regard to the statutory provisions. That view was also taken by Laws LJ, when he examined the matter on paper, but, because it was a matter of importance, it was thought right that it should be considered in open court and we have been considering it this morning.
4. Mr Goudie, on behalf of the putative appellant, submits that, although the words on the face of them appear to be of completely general application and thus to block any possibility of bringing the decision of Lawrence Collins J before the Court of Appeal, there should be a more restrictive approach to the interpretation of those words, having regard to the fact that in the past courts have shown a reluctance to inhibit the jurisdiction of the Court of Appeal.
5. Of course, it has to be recognised, as Mr Goudie accepts, that the Court of Appeal itself has a jurisdiction which is statutory, as can be seen by section 16(1) of the Supreme Court Act 1981, which provides that:

"Subject as otherwise provided by this or any other Act (and in particular to the provision in section 13(2)(a) of the Administration of Justice Act 1969 excluding appeals to the Court of Appeal in cases where leave to appeal from the High Court directly to the House of Lords is granted under Part II of that Act) or as provided by any other order made by the Lord Chancellor under section 56(1) of the Access to Justice Act, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court."

So the very wording of section 16(1) makes it clear that the jurisdiction can be fettered by the provisions of other legislation and of course we are faced here with a situation in which there does appear such a fettering.

6. Mr Goudie submits that we should have regard to what was said first of all by Lord Denning MR in Pearlman v Harrow School [1979] 1 All ER 365 at page 372. In that case the court was concerned with a decision under the Housing Act made in the county court and the question arose as to whether there was jurisdiction by way of certiorari. The court came to the conclusion that there was, but the statutory words, as Mr Goudie points out, which appeared to inhibit any form of appeal were the words "final and conclusive". At page 372, letter G, Lord Denning went on to say:

"I must say that, if I had been of opinion that certiorari did not lie, I would have held that the tenant could have appealed under section 108 [of the County Courts Act 1959]: because I would never accept a situation where different judges on the same set of facts could have come to different conclusions on points of law."

Those very wide words were obviously an observation made obiter dicta. They were, however, supported to some extent by Eveleigh LJ in the same case, who at page 379 said, at letter D:

"I have had some difficulty in persuading myself that there is no appeal on a point of law from the decision of the judge in the county court."

Then he went on to deal with the matter in other ways.

7. That particular remark of Lord Denning in that case was considered two years later by the House of Lords in In Re Racal Communications, where the court was concerned with the provisions of the Companies Act. The case is reported at 1981 AC at page 374 and the words under consideration were these (to be found in section 441 of the Companies Act 1948):

" ... the decision of a judge of the High Court or of any of the Lords Commissioners of Justiciary on an application under this section shall not be appealable."

8. The House of Lords had its attention invited to what had been said in Pearlman and at page 382C, Lord Diplock said:

"My Lords, with great respect, I think that this dictum on which counsel for the respondent strongly relied is wrong; but in any event it has no application to the instant case. The expression with which your Lordships are concerned instead of being "final and conclusive" is "not appealable", which perhaps makes the point even clearer, but I agree with counsel for the respondent that there is no relevant distinction between the two."

Lord Keith agreed with Lord Diplock. As Mr Goudie says, it was not essential for the purposes of Re Racal that the observations of Lord Diplock should be regarded as part of the decision, but one does have a very telling observation from two members of the House of Lords as to whether or not what had been said by Lord Denning in Pearlman should be regarded as reliable. I, for my part, would accept the guidance offered by the House of Lords in In Re Racal, but in fact we have more assistance than that because in section 18(1)(c) of the Supreme Court Act 1981 there appear these words:

"No appeal shall lie to the Court of Appeal--

...

(c) from any order, judgment or decision of the High Court or any other court or tribunal which, by virtue of any provision (however expressed) of this or any other Act, is final."

9. I find no difficulty in construing those words. They seem to me to speak for themselves and, when those words are applied to the words which one finds in paragraph 9 of Schedule 1 to the Films Act 1985, in my judgment there is simply no room for argument.
10. We have also had our intention invited to the decision of this court in Re Austintel [1977] 1 WLR 616, a case which was concerned with the use of the word "final" in the Insolvency Rules. In that case this court came to the conclusion that that word did not really permit of any argument. In my judgment, that must be the position here.
11. As Mr McGregor pointed out in his brief submissions, there is here a provision in paragraph 9 of the Films Act which enables the discontented applicant to bring before a High Court judge any matter, whether it relates to merits or to the approach adopted in law by the Secretary of State, but that provision is quite explicit. It says that, having brought the matter before a High Court judge, "The decision of a High Court judge shall be final." Such a decision by its very nature does not permit of judicial review." In my judgment, the situation in the present case is that there is no right of appeal from the decision of Lawrence Collins J to this court.
12. LORD JUSTICE JONATHAN PARKER: I agree. For the applicants to succeed, they have to find a context which displaces what would otherwise appear to be the clear meaning of the word "final" in paragraph 9(1) of the Schedule. I am quite unable to find any such context. Indeed, given that the word "final" is applied to the decision of a High Court judge, whose decision is not subject to judicial review, the context seems to me strongly to support the literal and natural meaning of the word "final".
13. I, therefore, conclude, in agreement with my Lord, that paragraph 9(1) means exactly what it says. Hence section 18(1)(c) of the Supreme Court Act 1981 applies and no appeal lies to the Court of Appeal in this case.
Appeal refused Permission to appeal to the House of Lords refused Costs to follow the event