Farley v Secretary of State for Work and Pensions (No 2); Farley v Child Support Agency

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,THE LORD CHIEF JUSTICE
Judgment Date22 June 2005
Neutral Citation[2005] EWCA Civ 869
Docket NumberC1/2004/1601

[2005] EWCA Civ 869

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR JUSTICE KEITH)

Before

The Lord Chief Justice of England and Wales

(The Lord Woolf of Barnes)

The Master of the Rolls

(Lord Phillips of Worth Matravers)

C1/2004/1601

Between
Alec Geoffrey Farley
Applicant
and
Child Support Agency
and
Secretary of State for Works and Pensions
Respondents

MR RICHARD DRABBLE QC and MR DAVID BURROWS (instructed by David Burrows & Co) appeared on behalf of THE APPLICANT

MR KENNETH PARKER QC and MR TIM WARD (instructed by the Office of Solicitor for Department for Work and Pensions) appeared on behalf of THE RESPONDENTS

Tuesday, 22 January 2005

THE LORD CHIEF JUSTICE

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...

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