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Cite as: [2000] 1 All ER 27, [2000] UKHL 56, [2000] 1 WLR 2222, [2000] WLR 2222

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Secretary of State For Trade and Industry; Ex Parte Eastaway, R v. [2000] UKHL 56; [2000] 1 WLR 2222; [2000] 1 All ER 27 (2nd November, 2000)

HOUSE OF LORDS

Lord Bingham of Cornhill Lord Steyn Lord Hoffmann Lord Clyde Lord Millett

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

v.

SECRETARY OF STATE FOR TRADE AND INDUSTRY (RESPONDENT)

EX PARTE EASTAWAY

(APPELLANT)

LORD BINGHAM OF CORNHILL

My Lords,

On 30 June 1999 the Secretary of State for Trade and Industry decided to continue proceedings against Mr. Eastaway ("the applicant") under section 6 of the Company Directors Disqualification Act 1986. On 18 August 1999 the applicant made application for permission to apply for judicial review of that decision and also a later decision of the Secretary of State. Permission to apply was refused on paper on grounds clearly but succinctly stated by Collins J. There followed an oral hearing before Sullivan J., with both sides represented, when permission was again refused on 27 January 2000. The applicant made application for permission to apply for judicial review to the Court of Appeal, and permission was refused by Buxton L.J. on 15 March 2000 following an oral hearing with both sides again represented. In the course of a considered judgment Buxton L.J. described the application as "misconceived". The applicant thereupon sought permission to present a petition of appeal to this House. On 11 July 2000 an Appeal Committee granted the applicant's petition for leave to appeal so that the House might have an opportunity to consider whether it has jurisdiction to entertain an appeal in these circumstances. That is the issue now before the House.

The legislative background

By section 31(3) of the Supreme Court Act 1981 and rule 53.3(1) of the Civil Procedure Rules a party may not apply for judicial review unless the permission of the court has been obtained. It is unnecessary to recite the terms of these familiar provisions.

A refusal of permission by the judge may be challenged in the Court of Appeal. Section 15 of the Supreme Court Act 1981 defines the general jurisdiction of the court, and section 16(1) confers jurisdiction to hear and determine appeals from any judgment or order of the High Court subject to exceptions irrelevant for present purposes. Section 18(1) provided that no appeal shall lie to the Court of Appeal in certain specified categories of case. Section 18(1A) provided:

Section 18(1A) reflected a tendency evident over many years to subject recourse to the Court of Appeal to a requirement of leave. Section 54(6) of the 1981 Act provided that applications to the Court of Appeal for leave to appeal to that court might be determined by a single judge of that court, from whose decision no appeal should lie. This requirement of leave was reflected in the relevant rules of court. With effect from 1 January 1999 Order 59 rule 1B provided:

(a) the making of a committal order; (b) a refusal to grant habeas corpus; or (c) an order under section 25 of the Children Act 1989 (secure accommodation orders).

Rule 59.14 governed the procedure for applying to the Court of Appeal and in sub-rule (3) provided:

This was directed to the special position where permission had been refused without notice to the proposed respondent. In Practice Direction (Judicial Review: Appeals) [1982] 1 WLR 1375 Lord Lane C.J. and Sir John Donaldson M.R. gave a practice direction on recourse to the Court of Appeal following refusal of leave to apply for judicial review by a Divisional Court or a single judge, describing such a refusal as "appealable to the Court of Appeal". The practice direction did not refer to any requirement of leave or permission to appeal, since at that time there was no such requirement.

On 19 April 1999, shortly before the new Civil Procedure Rules were to come into effect on 26 April 1999, Lord Woolf M.R. gave a practice direction consolidating with some amendments the principal practice directions governing proceedings in the Court of Appeal: see Practice Direction (Court of Appeal (Civil Division)) [1999] 1 WLR 1027. This Practice Direction contained the following paragraph:

Permission to appeal

When is permission required?

section 25

Children Act 1989

a

c

2.1.3 The experience of the Court of Appeal is that many appeals and applications for permission to appeal are made which are quite hopeless. They demonstrate basic misconceptions as to the purpose of the civil appeal system and the different roles played by appellate courts and courts below. The court below has a crucial role in determining applications for permission to appeal. This guidance indicates how applicants, and courts, should approach the matter."

Paragraph 2.7 of the Practice Direction read as follows:

Renewed applications for permission to apply for judicial review

2.7.2 This applies only to renewed applications for permission to apply for judicial review. Where permission to apply has been granted and the substantive application for judicial review has been dealt with in the High Court, any application to the Court of Appeal for permission to appeal against that decision will be governed by the general provisions for such applications."

Section 54 of the Access to Justice Act 1999, which was contained in Part IV of the Act and came into force on 27 September 1999, provided so far as relevant to this appeal as follows:

. . .

(c) the Court of Appeal, may be exercised only with permission.

. . .

The Civil Procedure (Amendment Rules) 2000 (SI 221/2000), which so far as relevant came into effect on 2 May 2000, inserted a new Part 52 into the Rules. That Part was set out in Schedule 5 to the statutory instrument, and provided in rule 52.3 and 52.15 that permission to appeal to the Court of Appeal against refusal of a judge to grant permission to apply for judicial review is required, whether from the lower court or the Court of Appeal. If those rules governed this case it would be clear, as counsel for the applicant accepts, that their effect is to preclude the House from entertaining this appeal. They did not, however, come into effect until after the decision of Buxton L.J., which was governed by the earlier provisions.

Reference should lastly be made to the Appellate Jurisdiction Act 1876, which in section 3 provided:

The authorities

The leading authority is Lane v. Esdaile [1891] AC 210, the effect of which is helpfully expounded in Kemper Reinsurance Co. v. Minister of Finance and Others [2000] 1 AC 1. The issue before the House was whether, under section 3 of the 1876 Act, it had jurisdiction to entertain an appeal from a refusal of the Court of Appeal to grant leave to appeal out of time. The House recognised that on a strict literal construction of section 3 the ruling of the Court of Appeal might be said to fall within the language of the section. But it adopted a purposive construction of section 3, pointing out that the requirement of leave was "intended as a check to unnecessary or frivolous appeals" (per Lord Halsbury L.C. at 212) and that the purpose of such a check would be defeated if the House could be invited to reconsider the merits of an application after its refusal by the Court of Appeal. It was recognised as obviously absurd to allow an appeal against a decision under a provision designed to limit the right of appeal. In the following year the decision of the House was applied by the Court of Appeal in In re Housing of the Working Classes Act, 1890, Ex parte Stevenson [1892] 1 QB 609. In that case a party had applied to a judge for what in effect amounted to leave to appeal and had been refused. The Court of Appeal held, following Lane v. Esdaile, that no appeal lay against such a refusal.

There matters stood until the decision of this House in In re Poh [1983] 1 WLR 2. In that case the petitioner to the House had been refused leave to apply for judicial review both by the single judge and by the Court of Appeal, and sought to appeal to the House against the refusal of leave by the Court of Appeal. The case did not concern a refusal of leave to appeal, but the House treated it as analogous to such cases and so covered by Lane v. Esdaile. It accordingly held that the House had no jurisdiction to grant leave in that case. Doubt was thrown on the strength of that analogy in Kemper, a case in which leave to appeal to the Court of Appeal of Bermuda had been given by a judge who had discharged leave to apply for judicial review previously given by another judge, and in which it was held that the Court of Appeal's reliance on In re Poh had been misplaced. The main importance of Kemper for present purposes is that it gave the quietus to the belief, hitherto prevalent, that recourse to the Court of Appeal following refusal of leave to apply for judicial review by the judge was a renewed application rather than an appeal. It was held, as both parties to this appeal accept, that the jurisdiction of the English Court of Appeal is exclusively appellate in character, conferred by statute, and that any reference to renewed applications is accordingly a misnomer: see pages 16-18 of the report.

Conclusion

Counsel for the applicant submitted that the present appeal did not fall foul of the rule laid down in Lane v. Esdaile. He pointed out that Order 59 rule 14(3) provided a special procedure for ex parte proceedings, that such hearings were de novo in character, that an application for permission to appeal is different from an application for permission to apply for judicial review (as recognised in Kemper), that Lord Woolf M.R. in the 1999 Practice Direction had recognised the need for legislation if rights of appeal were to be further restricted and that section 54 of the 1999 Act met the need which he had recognised. But the rules made to give effect to Lord Woolf's proposals had not taken effect in time to govern this case. The applicant's application to the Court of Appeal had not been a true appeal, nor had the Court of Appeal recognised or treated it as such. Stress was laid on the public interest which underlies applications for judicial review.

Skilfully though this argument was developed, I cannot for my part accept it. The applicant was seeking judicial review of the Secretary of State's decisions. To pursue that remedy he needed permission to apply for judicial review: section 31(3) of the Supreme Court Act 1981; Rule 53.3. He applied for permission to Collins J. on paper and then to Sullivan J. at an oral hearing, but was refused on both occasions. He was entitled to seek to challenge that refusal in the Court of Appeal: sections 16 and 18 of the Supreme Court Act 1981; Order 59 Rule 14(3); the 1982 Practice Direction. But the jurisdiction of the Court of Appeal is appellate only, and there is no basis for a distinction between true appeals and other appeals, whatever may at various times have been thought. The applicant accordingly needed permission to challenge the refusal of leave to apply for judicial review in the Court of Appeal: section 18(1A) of the Supreme Court Act 1981; section 54 of the 1999 Act; Rule 59.1B; 1999 Practice Direction, at para. 2.1. The requirement of permission to appeal was confirmed by the new rules which came into force in May 2000. The applicant did not ask Sullivan J. for, or obtain, permission to appeal against his decision. Had he done so, it seems most improbable that the judge would have granted permission to appeal. But the applicant was entitled to seek such permission (that is, permission to appeal against the judge's refusal of permission to apply for judicial review) from the Court of Appeal: section 54(4) of the 1999 Act; Order 59 Rule 1B(2). He did not expressly seek permission to appeal from the Court of Appeal. But since the Court of Appeal only had jurisdiction to entertain an appeal against the refusal of Sullivan J. to give permission to apply for judicial review if permission were given to the applicant to appeal, and Sullivan J. had not given such permission, the Court of Appeal must be taken to have refused permission to appeal, as it certainly would have done had its attention been directed to the need for permission since the application was described as "misconceived". In his petition to the House, the applicant is seeking to challenge not only the Court of Appeal's refusal of permission to apply for judicial review but also the Court of Appeal's implicit refusal of permission to appeal. In doing so he falls foul of the rule in Lane v. Esdaile, which construed section 3 of the 1876 Act as precluding appeal to this House against a refusal of leave to appeal by the Court of Appeal.

The requirement of permission to apply for judicial review is imposed primarily to protect public bodies against weak and vexatious claims. The requirement of permission to appeal is imposed primarily to protect the courts against the burden of hearing and adjudicating on appeals with no realistic chance of success. The purpose of these filters is different, even though there is an incidental benefit to the courts in the first case and the successful litigant (or both litigants) in the second. Kemper concerned the first of these filters only, since the judge gave leave to appeal against her decision. In re Poh also concerned the first of these filters only, since the applicant had not required the permission of the judge or the Court of Appeal to seek leave to apply for judicial review in the Court of Appeal. The present case involves both filters: the applicant needed permission to appeal and also permission to apply for judicial review. It is the fact that he needed, and was impliedly refused, permission to appeal by the Court of Appeal which distinguishes the case from Kemper and brings it within the ratio of Lane v. Esdaile.

Despite the applicant's argument, I see no escape from this conclusion. Nor should the House, in my opinion, seek to escape from it. In its role as a supreme court the House must necessarily concentrate its attention on a relatively small number of cases recognised as raising legal questions of general public importance. It cannot seek to correct errors in the application of settled law, even where such are shown to exist. In this case it is not suggested that the decision of Buxton L.J. raises any legal question of general public importance. The House has not, because of its decision on jurisdiction, heard argument on the merits of the applicant's complaint, but these have now been considered in detail by two judges of the High Court and one Lord Justice of Appeal, and it would both stultify the requirement of permission to appeal to the Court of Appeal and subvert the true function of the House if it were now open to the applicant to invite the House to review the merits of his complaint for a fourth time. Whatever sympathy one may have for the applicant personally, the House must apply the law as it stands and adhere to its true constitutional role.

I accordingly hold that the House has no jurisdiction to entertain this appeal. Since the House has chosen this case to resolve an issue concerning its own jurisdiction, I would accede to the request of counsel for the applicant that there be no order for costs in this House.

LORD STEYN

My Lords,

I have had the advantage of reading in draft the speech of Lord Bingham of Cornhill. For the reasons he gives I would make the ruling and order in respect of costs which he proposes.

LORD HOFFMANN

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Bingham of Cornhill.

For the reasons he gives I too would rule that the House has no jurisdiction to entertain this appeal.

LORD CLYDE

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. For the reasons he gives I agree that the House has no jurisdiction to entertain this appeal.

LORD MILLETT

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. For the reasons he gives I agree that the House has no jurisdiction to entertain this appeal.