IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE HART)
Wednesday, 5 February 2003
B e f o r e :
LORD JUSTICE BROOKE
LORD JUSTICE LAWS
|(1) JERZY JAN MATLASZEK|
|(2) ELENORA IRENA MATLASZEK||Claimants/Respondents|
|BLOOM CAMILLIN (A FIRM)||Defendants/Appellants|
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MR A K SEN (instructed by Messrs Rippon Patel French & Co, London, W1G 8QG ) appeared on behalf of the Respondents
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(1) Has this court jurisdiction to set aside its order dismissing the appeal, thus permitting the appeal to proceed? (2) If it has jurisdiction, should it exercise that jurisdiction?
"Mr Campbell, for Ogwr, contended that the court has inherent jurisdiction to reinstate an appeal that has been struck out or dismissed. He submitted that where there has not been a hearing of an appeal of any kind, this court is not functus officio but retains a general discretion to reinstate an appeal, or, where an order of dismissal has been entered, to allow a new notice of appeal to be served. He relied on the note in paragraph 59/1/55 of the 1993 Supreme Court Practice to the effect that this court has inherent jurisdiction to reinstate an appeal which has been struck out or dismissed for non-appearance of the appellant, and contended that there was no reason why this court should not similarly be able to allow an appeal to be brought after an earlier appeal has been dismissed without their being a determination on the merits.
I am unable to accept Mr Campbell's submission. The general rule, as I see it, is that once an order dismissing an appeal has been perfected the court has no jurisdiction to revive the appeal or to allow a fresh appeal to be brought. That was the view expressed by Lord Greene MR, with whom du Parcq and Morton LJJ agreed, in Re Samuel  Ch 364."
Later in his judgment, Peter Gibson LJ continued:
"In the light of the observations of the Master of the Rolls in Re Samuel it seems to me it is a matter of jurisdiction, and that this court cannot reinstate an appeal unless the matter falls within an exception which has been recognised by this court. One such exception is where an appellant has not appeared and the appeal has been dismissed without a hearing or determination of the appeal. In such a case this court has jurisdiction to reinstate the appeal (see for example Brooksbank v J C Rawsthorne & Company  2 All ER 413). The exceptions are in all in my judgment distinguishable from the facts of the present case where the appellant himself has sought the dismissal of this appeal and that has been acted upon and the order dismissing the appeal has been perfected. If one seeks a policy reason as to why this should be the case, it is readily to be found in the fundamental principle that there should be finality in litigation."
In a short judgment in characteristic terms, Staughton LJ agreed. He said:
"...we have no power to hear and determine an appeal by the Borough Council today. The appeal has been determined already by this Court, when at the Borough Council's request an order dismissing the appeal was drawn up and sealed on 25 August 1989. Once that was done the moving finger had written. Not all Mr Campbell's piety and wit can lure it back to cancel half a line; nor, for that matter, could all his tears wash out one word of it. It is a case that does not fall within any recognised exception."
Also concurring, the Master of the Rolls, Sir Thomas Bingham, said:
"For nearly have a century, since the decision of the Court of Appeal in Re Samuel, it appears to have been accepted in this court that if an appellant asks that his appeal should be dismissed with costs, and an order of the court is formally drawn up dismissing the appeal with costs, that is final and the court cannot allow the appeal to be pursued under that notice of appeal or revived by another notice of appeal. I can see no reason to question the general correctness of that understanding which is reflected in the current practice of the court. It is unnecessary to consider the extent to which in different circumstances an appeal can be pursued or revived, despite dismissal, since this appeal seems to me to fall squarely within the ruling of the Court of Appeal in Re Samuel. I, therefore, think that Chapman is right in submitting that the Court of Appeal has no jurisdiction to entertain this appeal. If, however, that conclusion is wrong then it is in my view plain that to allow a further appeal to be pursued in these circumstances would be contrary to the practice of the court and would require demonstration of extraordinary circumstances to justify what would otherwise be an abuse of the process."
It is to be noted that the Master of the Rolls envisaged the possibility that it might not be correct to say that the court had no jurisdiction. For myself I find it a little hard to see how, if this court has properly allowed orders to be set aside in certain exceptional cases, the decision whether or not to do so turns on jurisdiction rather than discretion.
"The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an 'inherent power' the exercise of which is within the 'inherent jurisdiction' of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice."
Lord Woolf continued:
"In our judgment the final words of Lord Diplock, 'the doing by the courts of acts which it needs must have power to do in order to maintain its character as a court of justice' express the situation here under consideration exactly. If more authority is required, reference may be made in a very different context to the speech of Lord Morris of Borth-y-Gest in Connelly v Director of Public Prosecutions  AC 1254, 1301 where Lord Morris said:
'There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process'.
Earlier judgments referring to limits on the jurisdiction of this court must be read subject to this qualification. It is very easy to confuse questions as to what is the jurisdiction of a court and how that jurisdiction should be exercised. The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.
One situation where this can occur is a situation where it is alleged, as here, that a decision is invalid because the court which made it was biased. If bias is established, there has been a breach of natural justice. The need to maintain confidence in the administration of justice makes it imperative that there should be a remedy. The need for an effective remedy in such a case may justify this court in taking the exceptional course of reopening proceedings which it has already heard and determined. What will be of the greatest importance is that it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy. The effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations. Where the alternative remedy would be an appeal to the House of Lords this court will only give permission to reopen an appeal which it has already determined if it is satisfied that an appeal from this court is one for which the House of Lords should not give leave.
Today, except in a few special cases, there is no right of appeal without permission. The residual jurisdiction which we have been considering, is one which should only be exercised with the permission of this court. Accordingly, a party seeking to reopen a decision of this court, whether refusing permission to appeal or dismissing a substantive appeal, must apply in writing for permission to do so. The application will then be considered on paper and only allowed to proceed if after the paper application is considered this court so directs. Unless the court so directs, there will be no right to an oral hearing of the application. The court should exercise strong control over any such application, so as to protect those who are entitled reasonably to believe that the litigation is already at an end."