Horseferry Road Justices & Ors v City of Westminster

(As Approved by the Court

Tuesday 1 July 2003

THE LORD CHIEF JUSTICE: Lord Justice Auld will give the first judgment.

LORD JUSTICE AULD:

1. This matter comes before the court as an appeal, with the permission of Mackay J, by the Horseferry Road Justices and interested parties against the decision on 28 February 2003 on a case stated by the justices relating to a licensing matter.

2. The issue of substance raised by the purported appeal to this court is whether a Special Hours Certificate under section 77A(3) of the Licensing Act 1964 granting an extension of permitted hours for on-licence premises may be granted in respect of part of the premises for which no music and dancing licence had been granted.

3. The effective would-be appellants are the holders of the on-licence and the Special Hours Certificate. The respondent to the proceedings before this court is the Westminster City Council.

4. Mackay J held, contrary to the view of the justices, in allowing Westminster City Council to appeal to him on the case stated, that section 77A does not permit the grant of a Special Hours Certificate for part of on-licence premises in respect of which part there is no music and dancing licence. In granting permission to appeal to this court, Mackay J stayed his order pending the outcome of the appeal.

5. First, the court must decide whether it has jurisdiction to determine the matter at all. That is a question to which Master Venne, the Head of the Civil Appeals Office, has drawn our and counsel's attention.

6. By section 28A(4) of the Supreme Court Act 1981, a decision of the High Court on appeal to it by way of case stated from a magistrates' court under section 111 of the Magistrates' Court Act 1980, not on any criminal cause or matter, is “final”. This High Court decision, being one on a licensing matter, is, on the face of it, stamped with that finality. The Court of Appeal is a statutory creation with the boundaries of its jurisdiction identified by, and subject to, restrictions imposed by statute. Section 15 of the Supreme Court Act 1981 gives it its general jurisdiction. Section 16 specifically gives it its jurisdiction to hear and determine appeals “from any judgment or order of the High Court”.

7. Section 18 of the 1981 Act, reproducing in this respect section 33(1)(d) of the Supreme Court of Judicature (Consolidation) Act 1925, provides in paragraph 1(c):

“No appeal shall lie to the Court of Appeal from any order, judgment or decision of the High Court which by virtue of any provision (however expressed) of this or any Act is final.”

“Final” is the very word used in section 28A(4) of the same Act.

8. No point as to this finality was taken before or by Mackay J when Mr John Saunders QC, who appeared on behalf of the licensees, asked the judge for permission to appeal. Understandably perhaps, neither counsel nor the judge had this statutory restriction in the forefront of their minds at the time. It has happened before and it will no doubt happen again.

9. Mr Saunders, who appears again today for the licensees, has sought to overcome this statutory jurisdictional barrier by resort to the Rules of Court and provisions made in the Access to Justice Act 1999. His starting point is in sections 54(1) and 55 of the 1999 Act, which provide respectively for the provision by Rules of Court to subject the exercise of any right of appeal to permission, and for direct statutory criteria governing the Court of Appeal's own acceptance of jurisdiction on second appeals. This, said Mr Saunders, is a second appeal, coming as it does from a first appeal to the High Court, and section 55(1) applies. It provides:

“Where an appeal is made to the High Court in any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal unless the court considers that --

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it.”

By that route Mr Saunders took the court, briefly in his oral submissions, but more fully in his skeleton argument, to the Access to Justice Act 1999 (Destination of Appeals) Order 2000, Article 5 of which provides:

“Second appeals from the County Court or to the High Court lie only to the Court of Appeal.”

Mr Saunders suggested (albeit softly) that the effect of those provisions in and derived from the 1999 Act gave a right of appeal to the Court of Appeal from a decision on a case stated where none previously existed. In my view, they plainly do not. Section 54 of the 1999 Act does not purport to create any right of appeal, general or particular, to the Court of Appeal. Its purpose and effect are to subject existing rights of appeal conferred elsewhere (in this case the 1981 Act) to the need for permission. Nor does section 55 in relation to second appeals create any such right. It simply supplements the requirement of permission to exercise any right of appeal to the Court of Appeal that might otherwise exist to two specified criteria. The 2000 Destination of Appeals Order is just that: a prescription of where appeals, if there is a right to them, go, not the creation of any right of appeal to the Court of Appeal not to be found elsewhere.

10. None of those provisions in or derived from the 1999 Act purport, or could reasonably be construed, to override the clear ouster of jurisdiction to the Court of Appeal in section 28A of the 1981 Act to hear appeals from orders on appeal to the High Court by way of case stated, a finality which, as I have indicated, is underlined in section 18 of the same Act.

11. If further reassurance as to that conclusion were needed, it could be found in the fact that the finality provision in section 28A(4) was inserted by a provision in the Statute Law Revision Act 1999 and substituted by the Access to Justice Act 1999 itself. This is not new ground. This court considered this jurisdictional issue in Maile v Manchester City Council on 16 October 1997 (unreported, CA No QBCOF 97/0537/D). In that case the court held that the provision meant what it said and could not be construed to permit, as was urged before it, allowance of appeals on points of law. Hutchison LJ, with whom Nourse and Thorpe LJJ agreed, said at pages 3 and 4 of the transcript:

“The words of the two sections that I have cited are absolutely clear. They are very wide words, plainly apt to include appeals on points of law as well as appeals on fact. Moreover, bearing in mind that section 111 is concerned with stating a case on a question of law or jurisdiction, it seems to me that it will always, or at any rate almost always, be the case that a projected challenge to the decision of a judge on the hearing of a case stated will raise a point of law.

In my judgment the effect of section 28A(4) and section 18 is absolutely to prohibit an appeal such as is sought to be pursued in the present case. Accordingly, there is no jurisdiction in this Court to entertain the appeal, which must therefore be rejected.”

That is a decision which is binding on this court. In so ruling, Hutchison LJ took the same course as the House of Lords had done many years before in In Re Racal Communications Ltd [1981] AC 374, when considering the statutory predecessor of section 18 of the 1981 Act, which, as I have indicated, is section 33(1)(d) of the 1925 Act -- in that instance, in the context of a finality bar imposed by section 441 of the Companies Act 1948.

12. Mr Saunders today sought to repeat the argument that had been put to the Court of Appeal in Maile v Manchester City Council, and also to their Lordships in Racal Communications Ltd that the word “final” in section 18 and in section 28A of the 1981 Act did not bar submissions on a point of law. That submission was roundly rejected by their Lordships in Racal. It may be, as a result of the point being taken there, that when section 18 appeared in the 1981 Act, largely reproducing the provision in the 1925 Act, there appeared in it words that had not been in the 1925 Act, the words “however expressed” in the passage “which, by virtue of any provision (however expressed) of this or any other Act is final”.

13. In the result, I am of the view that the words of section 28A and of section 18 of the 1981 Act mean what they say. When a decision is declared final by statute, then this court has no jurisdiction to hear it by virtue of that provision and by section 18 of the 1981 Act. Nothing in the 1999 legislation changes that.

14. It is true, as Mr Saunders has pointed out, that this court, in Westminster City Council v Mendoza (unreported, 14 February 2001, CA No C/2000/541) exercised what it seemingly assumed to be its jurisdiction to hear and dismiss an appeal from an order of the Divisional Court on an appeal to it by way of case stated on a matter concerning the closure of premises. As in this case, counsel had not drawn the attention of the court, when seeking permission to appeal, or on the hearing of the appeal, to the jurisdictional obstacle to it created by section 28A of the 1981 Act. But for the vigilance of Master Venne, we would most likely have missed it too on this appeal. It is easily missed, and counsel and the court should be alive to the point in the many statutory contexts in which a finality provision is to be found, engaging the umbrella statutory bar on such appeals contained in section 18 of the 1981 Act.

15. For those reasons I would decline jurisdiction to rule on this purported appeal. To the extent that the matter as a result is now determined, it may be that the stay ordered by Mackay J until the hearing of the appeal is dealt with will fall away. Accordingly, I propose no order.

16. LORD JUSTICE CLARKE: I agree.

17. THE LORD CHIEF JUSTICE: I agree with the judgment of Auld LJ as to the question of jurisdiction. The only matter that I would add relates to what are the consequences of our decision.

18. In the course of his argument before us, Mr Saunders indicated that an application has been made by his clients, who are the present licensees, for a fresh licence to the Horseferry Road Justices. The Horseferry Road Justices have, understandably, indicated that they would not proceed with that fresh application until after the hearing which has taken place before this court today. They were concerned about the propriety of their continuing to hear the application, having regard to the decision of Mackay J. It would no doubt assist the justices if I indicate, as I do, that I can see nothing inappropriate in their continuing to hear the fresh application. In regard to any decision they come to they would have to take into account, insofar as it is relevant for them to do so, the decision of Mackay J.

19. In his submissions Mr Saunders indicated that if the outcome of that fresh application was a decision which was adverse to his clients because of the judgment of Mackay J, it would be his clients' present intention to make an application for permission to apply for judicial review. That application for permission to apply for judicial review would be made with a view to achieving a decision by this court which would not be available on an appeal by way of case stated. It would obviously be a matter for the court before whom the application for permission to apply for judicial review came to decide the appropriate action in the circumstances for the court to take.

20. Mr Rankin, who appears on behalf of the Lord Mayor and Citizens of Westminster, courteously indicated to this court that his present instructions would then be to argue that to grant permission for an application for judicial review would be wrong because the application for judicial review would constitute an abuse of process. If any such argument is advanced, it will be for the judge dealing with the question of the grant or refusal of permission to apply for judicial review to determine. It appears to us that there would be two matters for that judge to take into account: (1) the fact that the decision of Mackay J is treated by the legislation as final; and (2) the fact that Mackay J was of the opinion that there should be an appeal (subject to there being jurisdiction for that appeal to be heard). The object which Mackay J had in mind could be achieved on an application for judicial review, namely that there should be consideration by this court, whereas it could not be achieved on an appeal by way of case stated.

21. Accordingly, an alternative course to that which may be urged on behalf of the Lord Mayor and citizens of Westminster would be for the judge hearing the application for permission, to grant that permission but to dismiss the application so that an appeal to this court would be available to the licensees. But it is for the decision of the judge hearing the application for permission to apply for judicial review to determine what is the appropriate course to take.

22. A further matter arises. In the ordinary way, if the decision of this court which has just been announced were to be embodied in an order, the stay which has been granted by Mackay J would come to an end. With a view to avoiding the injustice to the licensees which could otherwise occur, I would direct the court not to draw up the order to which we have referred in our judgments for a period of 28 days. That would enable Mr Saunders' clients to have an opportunity to try to obtain a decision of a court on an application for judicial review which would protect their position.

23. LORD JUSTICE AULD: I agree with the order that my Lord proposes.

24. LORD JUSTICE CLARKE: I also agree.

ORDER:

Jurisdiction declined; no order made; respondents to have costs of the appeal.