Daisystar Ltd v Town and Country Building Society
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE NOLAN,LORD JUSTICE STEYN |
| Judgment Date | 30 January 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0130-6 |
| Docket Number | 92/0053 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 January 1992 |
[1992] EWCA Civ J0130-6
The Master of the Rolls
(Lord Donaldson)
Lord Justice Nolan
Lord Justice Steyn
92/0053
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
MR. PETER MARTIN (instructed by Messrs. Beller Needleman) appeared for the Appellants.
THE RESPONDENTS were not represented and did not appear.
In this case Mr. Martin has struggled manfully and against all the odds to persuade us that some such doctrine as was enunciated in Scherer and another v. Counting Instruments Ltd. and another [1986] 1 W.L.R. 615 in the context of section 18(1)(f) of the Supreme Court Act 1981 applies to section 54(6) of that Act, which provides as follows:
"An application to the civil division of the Court of Appeal for leave to appeal to that court may be determined by a single judge of that court, and no appeal shall lie from a decision of a single judge acting under this subsection."
In the cases with which he was concerned on 4th September 1991 Lord Justice Balcombe refused three applications for leave to appeal by Mr. Martin's clients, who were a Mr. Raja and his company Daisystar Limited. Mr. Martin has put in a proposed notice of appeal from which it appears that he would wish to submit that Lord Justice Balcombe was mistaken in refusing leave to appeal, and in particular took account of a document in dismissing one of the applications which did not in fact relate to that case.
Going on from that factual assertion—which I have not tested one way or the other—he refers the court to Anisminic Ltd. v. Foreign Compensation Commission and another [1969] 2 A.C. 147, which is not unknown to this court, and submits that it is possible to argue that in this case the decision of the learned Lord Justice was a nullity. In support of that proposition he cited from Lord Reid's speech at page 171, where he sets out a number of considerations—which, of course, I entirely accept in their context—namely that, notwithstanding a similar provision not relating to appeals but relating to the supervisory jurisdiction of the court, the court can in some circumstances treat fundamental errors by the decision maker as giving it jurisdiction.
That seems to me to be wholly different from the situation with which we are concerned, namely whether there is any exception to a filtering provision relating to a right to appeal by analogy with the "Scherer principle".
A somewhat similar essay in judicial reconstruction of a statute was attempted in the case of Aden Refinery Co. Ltd. v. Ugland Management Co. Ltd. [1987] 1 Q.B. 650, the submission there being that the terms of section 1(6A) of the Arbitration Act 1979 as amended, which read
"Unless the High Court gives leave, no appeal shall lie to the Court of Appeal from a decision of the High Court — (a) to grant or refuse leave under subsection 3(b)…,
were subject to such a principle. This was rejected by this court.
At page 661 I dealt first of all with whether I would have reached a different decision from the learned judge and said this:
"That said, the question still remains: did the judge fail to exercise his discretion judicially? The answer must be that there are no reasons for suspecting, and still less for finding, that he did. All that I can say is that I would probably have reached a different decision, but the possibility of differences of opinion is inherent in the exercise of discretionary powers. Even if, therefore, Mr. Eder were right in his submission that he could escape the obstacles raised by section 1(6A) of the Act of 1979 and by Lane v. Esdaile [1891] A.C. 210, if he could show a failure by the judge to exercise his discretion judicially, I would have dismissed any appeal. But in fact I do not think these escape routes exist."
Then I turned to the aspect which is highly germane to Mr. Martin's present argument. I continued in this way:
"Mr. Eder's whole argument is based upon the curious, but well...
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Yorkshire Bank Plc v Hall
...as a condition of granting leave to appeal. In Daisystar Ltd v Town and Country Building SocietyTLRWLR (The Times February 14, 1992; (1992) 1 WLR 390), the court reached the same conclusion where a single lord justice had refused leave. In his Lordship's view, there was no inconsistency bec......
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TA (appellant) AA (by His Litigation Friend, the Official Solicitor) (1st Respondent) Knowsley Metropolitan Borough Council (2nd Respondent)
...way of example: Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 262; Geogas SA v Tammo Gas Ltd [1991] 1 WLR 776; Daisystar v Town and Country Building Society [1992] 1 WLR 390, 393; Wendy Fair Markets Ltd v SSE [1995] 159 LGLR 769; Riniker v University College London [2001] 1 WLR 1......
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Clark (Inspector of Taxes) v Perks (No 2); MacLeod (Inspector of Taxes) v Same; Guild (Inspector of Taxes) v Newrick and Another
...to hear an appeal against such a decision (unless it can be truly said that there was no decision at all, for which see Daisystar v Town & Country Building Society [1992] 2 All ER 321, 324). On the other hand, if on such an occasion, the appeal court makes a further order, such as a costs o......
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...LJ's dictum has never had to be made the basis of a decision, but it has been repeatedly cited with approval. Thus in Daisystar Ltd v. Town and Country Building Society [1992] 1 WLR 390 at 393/4, in the context of section 54(6) of the Supreme Court Act 1981 ("no appeal shall lie from a deci......
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The Bowman Review of the Court of Appeal
...Griffiths LJ; Practice Direction [1990]3 All ER 981; RG Carter Ltd vClarke [1990] 2 All ER 209; Daisystar Ltd vTown & Building Society[1992] 1 WLR 390, 394 per Lord Donaldson of Lymington MR.58 Recommendation 133. And see ch 10 paras 22–25.59 Re Wilson [1985] AC 750, discussed in Sir Jack J......