J U D G M E N T

Tuesday, 22 January 2005

THE LORD CHIEF JUSTICE:

1. 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.

2. 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:

"3. .... On 4 December 2003, North Somerset Magistrates' Court made a liability order in respect of child support maintenance against the appellant, Mr Farley, pursuant to section 33 of the Child Support Act 1991.

4. Mr Farley appealed against that order by way of case stated to the High Court.

5. On 12 July 2004, Keith J dismissed the appeal.

6. On 15 September 2004, Brooke LJ granted the appellant leave to appeal on a paper consideration of the application.

7. On 25 January 2005, the Court of Appeal (Lord Woolf CJ, Lord Phillips MR and Lord Slynn of Hadley) allowed the appeal and ordered that the liability order made by the North Somerset Family Proceedings Court should be set aside, and the Secretary of State's application for a liability order be remitted for further adjudication.

8. On 24 February 2005 the respondents lodged a petition to appeal in the House of Lords seeking leave to appeal on the question of substance considered by the Court of Appeal. The petition was accepted by the Judicial Office 'in pencil'. The Judicial Office advised me that it was necessary that the Order of the Court of Appeal of 25 January 2005 should be amended so that both the Secretary of State for Work and Pensions and the Child Support Agency were parties (only the Child Support Agency had been on the record as a respondent before the Court of Appeal)."

Mrs James then adds that on 1 March 2005 her attention was for the first time drawn by another lawyer in the department to the fact that the effect of sections 18 and 28A(4) of the Supreme Court Act 1981 meant that the decision of Keith J was final and so no appeal lay to the Court of Appeal from that decision. In support of her contention she cited Horseferry Road Justices v The Lord Mayor and the Citizens of the City of Westminster[2003] EWCA Civ 1007 (Lord Woolf CJ, Auld and Clarke LJJ), in which this court decided that the High Court on an appeal by way of case stated is indeed a decision which is final and therefore no appeal lay from that decision to the Court of Appeal.

3. 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.

4. 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.

5. 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:

"3. The appeal is concerned in particular with the correct interpretation of section 33 of the 1991 Act. Under that provision, a Magistrates' Court must make a 'liability order' when satisfied that payments of child support maintenance have become payable under a maintenance assessment by the liable person and not been paid. The issue is whether, in carrying out this function, the Magistrates have power to enquire into the validity of the maintenance assessments themselves. The Secretary of State submits that they did not. Keith J upheld the Secretary of State's submission at first instance, but the Court of Appeal concluded that the Magistrates had both the power and the obligation to do so."

6. 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:

"(1) This section applies where a case is stated for the opinion of the High Court --

(a) by a magistrates' court under section 111 of the Magistrates' Court Act 1980; or

(b) ....

(2) The High Court may, if it think fit, cause the case to be sent back for amendment and, where it does so, the case shall be amended accordingly.

....

(4) Except as provided by the Administration of Justice Act 1960 (right of appeal to the House of Lords in criminal cases), a decision of the High Court under this section is final."

Having referred to that section Auld LJ said:

"6. .... 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 jurisdiction to hear and determine appeals from any judgment 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."

At paragraph 9 Auld LJ referred to the Access to Justice Act 1999 (Destination of Appeals) Order 2000, Article 5, which provides:

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

He then added:

"Mr Saunders suggested (albeit softly) that the effect of those provisions in and derived from the 1999 Act give 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 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."

Later Auld LJ referred to Maile v Manchester City Council and indicated how that case supports the view that he had already stated. He also referred to In Re Racal Communications Ltd[1981] AC 374.

7. 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.

8. 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:

"This preliminary point has been very clearly brought before us, but in my opinion the only construction that can be put upon s.31 of the Supreme Court of Judicature (Consolidation) Act, 1925, is that, in substance, it reproduces this somewhat patchwork legislation in existence immediately before its enactment. The position was this: by s.6 of the Summary Jurisdiction Act, 1857, the decision of the Court to which an appeal by case stated by justices was carried was made final and conclusive. By s.45 of the Judicature Act, 1873, the decision of a Divisional Court in such cases was made final unless that Court gave leave to appeal. Sir James O'Connor submits that the practice which arose under those enactments enabling an appeal to be entertained by the Court of Appeal if the Divisional Court gave leave to appeal continued down to the passing of the Act of 1925, but he says that now in consequence of the last mentioned statute having repealed s.45 of the Judicature Act, 1873, no appeal lies in such a case to the Court of Appeal. I am quite certain that the draftsman of the Act of 1925 did not intend such a result. By s.31, sub-s.1, cl.(d), of the Act of 1925 he has, in substance, reproduced the relevant provision of the Act of 1857, and then by cl.(f) he has, in substance, reproduced s.1, sub-s.5, of the Supreme Court of Judicature (Procedure) Act, 1894, which says that appeals to the High Court shall be heard and determined by a Divisional Court 'and the determination thereof by the Divisional Court shall be final, unless leave to appeal is given by that Court or by the Court of Appeal.' It is quite true that the draftsman has not in terms repeated s.45 of the Jurisdiction Act, 1873, but having regard to the fact that the Act of 1925 is a consolidation Act, I think that s.31, sub-s.1, clauses (d) and (f), must be read together and in the same sense as the corresponding provisions considered in Crush v Turner 3 Ex.D. 303 were read, that is, as enabling the Divisional Court to give leave to appeal in such a case as this. For those reasons I think that the preliminary objection fails."

Scrutton LJ gave a judgment to the like effect and Atkin LJ agreed.

9. 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.

10. 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:

"(1) 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 (howsoever expressed) of this or any other Act, is final);

....

(e) without the leave of the divisional court in question or of the Court of Appeal, from the determination by a divisional court of any appeal to the High Court."

If matters had remained with the legislation in that form there would be great force in Mr Drabble's submission. However, section 18(1) has now been amended. Initially the amendment was made by the Courts and Legal Services Act 1990. Section 7 of that Act provides:

"(1) Section 18 of the Supreme Court Act 1981 (restrictions on appeals to the Court of Appeal) shall be amended as follows.

(2) In subsection (1), paragraphs (e), (f) and (h) (which deal with cases in which leave is required for an appeal) shall be omitted."

(Subsection (1)(e) was no longer included.) It went on to provide, after subsection (1) for the insertion of subsection (1A) and (1B) in section 18, which I need not identify further. The consequence is that section 18 now does not contain within it both limbs of its predecessor which were relied on by Banks LJ in his judgment in the Leyton case.

11. 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.

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

"(4) Except as provided by the Administration of Justice Act 1960 .... a decision of the High Court under this section is final."

Subsection (4) retained a right of appeal in criminal cases to the House of Lords by that subsection, but it did not provide for any right of appeal to the Court of Appeal or to the House of Lords in civil cases.

13. 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.

14. 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.

15. 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:

"That is not, however, the end of the matter. This court has a curious quasi-original jurisdiction in relation to judicial review. If an application for leave to apply for judicial review is refused by the High Court, it can be renewed to this court and, if granted, the substantive application can be heard by this court, although the usual practice is to remit it to the High Court for hearing...."

Lord Donaldson went on to amplify what he had said there and continued to describe a process which it seems to me could be by analogy applied to the present.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

ORDER: (Not part of approved judgment)

Application granted with costs; leave to appeal refused.

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