Farley v Child Support Agency

The issue that comes before us today by an unusual route is whether this court had jurisdiction in civil proceedings to hear an appeal from a single judge of the High Court who had heard an appeal by way of case stated from a decision of magistrates.

The history of this matter is set out in an affidavit which has been filed on behalf of the applicant, the Secretary of State for Work and Pensions, Mrs Anita James clearly in these terms:

She says that no one in the department in any way concerned with the proceedings in this court (including counsel) had appreciated the absence of jurisdiction. It was also clear that those who had acted on behalf of Mr Farley had no appreciation of the possible absence of jurisdiction, so that the matter was never raised before the Court of Appeal prior to it giving its decision on 25 January 2005.

Once the position was appreciated action was taken to bring the matter to the attention of this court and to the attention of the House of Lords who have for the time being stayed the order which had previously been made on the application for leave to appeal to the House of Lords.

The issue which the Court of Appeal decided on 25 January was an appropriate issue for this court to consider. According to the Secretary of State the decision is one of some importance. In the petition to the House of Lords it is explained why it was necessary for permission to be granted to the Secretary of State to take the matter further to the House of Lords. The legislation which was considered by this court had a wide application. A number of other cases could be affected by the decision. In the petition, the Secretary of State identifies the issues as follows:

The question of whether this court had jurisdiction to hear the appeal at first sight appears very straightforward. There were the previous authorities of this court in Horseferry Road Justices v Westminster and Maile v Manchester City Council (16 October 1997). In Horseferry Road Justices v Westminster Auld LJ, who gave the judgment which was agreed with by the other members of the court, referred to section 28A of the Supreme Court Act 1981. That section, so far as relevant, reads as follows:

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):

None of these 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."

Mr Drabble QC, who, like Mr Parker QC who has appeared on behalf of the Secretary of State, did not appear before the Court of Appeal on its previous hearing, accepts on behalf of Mr Farley that, read literally, the statutory provisions to which Auld LJ referred clearly have the consequence that he indicated. However, his researches have revealed the earlier authority of Leyton Urban District Council v Wilkinson [1927] 1 KB 853, which, he submits, entitles this court to come to the conclusion that when the statutory history is examined, the position is far from clear and indeed there may be a right of appeal, contrary to the views indicated in the two earlier decisions of the Court of Appeal to which reference has been made.

The Leyton case was concerned with the historic provisions of the earlier Acts which are referred to in Auld LJ's judgment. The facts of the Leyton case are of no relevance. For present purpose it is sufficient to refer to the judgment on the preliminary point of Banks LJ which dealt with this matter. He said:

Starting with those instructive remarks of Banks LJ, Mr Drabble contends that, although the statutory provisions now are in a different form from that in which they existed at the time of that decision, basically they are the same provisions doing the same things and that the same relationship can be identified in the present legislation as was considered by Banks LJ. Accordingly, he contends that the reasoning of Banks LJ should be applied in the present circumstances to achieve the same result -- a result which would mean that, subject to obtaining the leave of this court to make a second appeal, which was obtained by Mr Farley, this court had jurisdiction.

Mr Drabble refers to the language of section 18 of the Supreme Court Act in its original form. Section 18 so far as relevant reproduced the effect of section 31 of the Judicature (Consolidated) Act 1925 by providing:

With the help of counsel we were able to follow what has happened to what was contained in section 18(e). Section 55 of the Access to Justice Act 1999 contained the provisions as to second appeals. In its own language it clearly deals with the situation where there is a right of appeal with leave, but it indicates how the Court of Appeal should exercise that power to give leave. It does not create a right of appeal by the language which it used.

Section 28 of the Supreme Court Act 1981, the terms of which are explicit, provides:

The approach that Banks LJ adopted in Leyton was an energetic exercise in interpretation designed to achieve a result which was intended to benefit a citizen who wished to appeal from the Divisional Court to the Court of Appeal. In my view it approached the limits to which it was appropriate as a matter of construction to read into the legislation an interpretation which is not self-evident on the language used by Parliament. Where there has been the legislative history that has occurred since the statutory provisions were passed in 1925, to which I have drawn attention, it seems to me that it would be a step too far for this court to apply the same approach to the different statutory provisions which now exist. Banks LJ was assisted by the fact that the two provisions on which he relied for his interpretation were contained in the same section of the same Act. To perform the same act now would involve applying it to different legislation and different sections. The whole structure now has been altered by the changes which have been made o a number of Acts. Although if one follows the paper trail that Mr Drabble followed it is possible to see a real link between the existing legislation and that which previously existed, I feel unable to follow his persuasive argument that we should today achieve the same result as was achieved by Banks LJ. In my view, the decision given by this court in Horseferry Road Justices v Westminster was clearly correct. Despite Mr Drabble's arguments, I still find the reasoning of Auld LJ in the judgment to which I have referred as being wholly convincing.

The consequence is regrettable. Although Mr Farley had an argument which persuaded this court to give a decision in his favour at the previous hearing on 25 January, that decision was one made without jurisdiction. That, however, is only part of the story. Mr Drabble advances an alternative to ensure argument that what was decided in this case on the previous hearing is not wasted. He submits that it is possible for this court by using a degree of procedural ingenuity to rely upon its decision which it made earlier this year. He submits that (if his submissions are not accepted), while this court may not have jurisdiction on an appeal by way of case stated, this court would have had jurisdiction if there had been an appropriate application for judicial review and Keith J had given his decision not on an appeal by way of case stated but on an application for judicial review. As hitherto there has been no application for judicial review, Mr Drabble submits that it is still open to Mr Farley to make such an application. To avoid the necessity of Mr Farley going back to stage one and making such an application, for the matter to go to the High Court and then to the Court of Appeal, and possibly thereafter to the House of Lords, this court should use the control it has over its own procedure to ensure that the benefit of the judgments which have been given by this court are still available to Mr Farley.

Mr Parker in his submissions accepts that if the court feels able to adopt this second approach of Mr Drabble, then the Secretary of State and the Child Support Agency would welcome the adoption of Mr Drabble's submissions with regard to the disposal of this matter on the basis that there had been an application for judicial review. However, he indicates -- and I would wholly agree with him -- that the course which Mr Drabble is urging the court to take is one which should only be adopted in the most exceptional of circumstances. However, regarding the case as exceptional, it seems to me that it makes good sense to adopt the approach advocated by Mr Drabble. Here again there is some precedent for the court exercising the ingenuity to which Mr Drabble refers. In Chief Adjudication Officer v Foster [1991] 3 All ER Lord Donaldson MR referred to the use of the different powers of the court in a very different context. In that case the court was concerned with section 14 of the Social Security Act 1980. At page 10 of his judgment Lord Donaldson referred to the powers of the Court of Appeal. He said this:

The matter boils down to this. On Mr Drabble's assurance that he will make an application for judicial review, we should treat that application as having been made and we should waive any procedural requirements as to the form of the application. The application should then come before this court as an application for permission to apply for judicial review. We, sitting as a court at first instance, should grant that permission, but refuse the application. Mr Drabble would then undertake to make an application for permission to appeal from that decision to this court. Sitting as this court, we will then grant the application and issue a declaration in the terms of our decision which was given on 25 January 2005. This will have the happy consequence so far as Mr Drabble is concerned that Mr Farley will have a declaration in his favour from this court which will override the decision of Keith J.

The Secretary of State will not be without benefit from this course. He can then issue a fresh petition to the House of Lords, as is appropriate, to seek leave to appeal to the House of Lords in respect of the decision which was given on 25 January. The benefit to the administration of justice of our taking this course is that if the House of Lords decides to grant leave, the correctness of the reasoning of this court given in its judgment of 25 January can be examined by the House and approved or disapproved as they consider appropriate. If leave is refused, the judgment which was given on 25 January will be available for the future guidance for those who have to litigate in this area and who have the responsibility for adopting the appropriate practice in this area as to how matters should proceed in future. There will then no longer be a judgment of this court which causes confusion to those who are involved in practice in this area because of its uncertain status due to the lack of jurisdiction to which I have made reference. In addition (although this will not affect our decision on the application for judicial review), we would be prepared to set aside our earlier decision. This court has an exceptional jurisdiction entitling it to do so in appropriate circumstances. This would be an exceptional case where it would be appropriate to intervene in that way. The court did not have its attention drawn to the issue of jurisdiction. In consequence of that it gave a decision which it would not otherwise have done and therefore that order should be set aside under the powers contained in the Civil Procedure Rules.

I trust that I have made the position clear from the procedural point of view as to the effect of the applications which Mr Drabble has undertaken to make.

THE MASTER OF THE ROLLS: The procedure and orders proposed by my Lord involve an extraordinary use of the jurisdiction of this court. Counsel have accepted that they fall within that jurisdiction. In my judgment, they were right to do so.

In any usual circumstances the procedure would amount to an abuse of process. But these circumstances are not usual. I agree with my Lord that the decision made by this court in this case was made without jurisdiction. The decision of the Court of Appeal in Westminster City Council v O'Reilly [2003] EWCA Civ 1007, [2004] 1 WLR 195, was not made per incuriam; it was plainly correct. There is no escaping the clear wording of sections 18 and 28A of the Supreme Court Act 1981. Our judgment and order were unhappily made without jurisdiction.

What needs to be done to put the matter right? If our decision were simply quashed on the ground that it was made without jurisdiction, it would nonetheless be calculated to give rise to considerable confusion. The House of Lords has given a preliminary indication that it would wish to consider the merits of our judgment and it seems to us that we should, if we can, take the appropriate steps to enable the House of Lords to do so.

CPR 52.17 gives us jurisdiction to do just that in the unusual circumstances of this case because, so it seems to me, the circumstances are exceptional and make it appropriate to reopen the appeal and there is no alternative effective remedy. The adoption of the ingenious use of procedure identified by Lord Donaldson is, in my judgment, appropriate. For these reasons I concur in the orders and procedure proposed by my Lord.