Geogas S.A. v Trammo Gas Ltd (Baleares)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Griffiths,Lord Jauncey of Tullichettle,Lord Lowry |
| Judgment Date | 18 July 1991 |
| Judgment citation (vLex) | [1991] UKHL J0718-2 |
| Date | 18 July 1991 |
| Court | House of Lords |
[1991] UKHL J0718-2
House of Lords
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Griffiths
Lord Jauncey of Tullichettle
Lord Lowry
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Jauncey of Tullichettle. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend, Lord Jauncey of Tullichettle, I would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Jauncey of Tullichettle. I agree with it and for the reasons which he gives I, too, would dismiss the appeal.
My Lords,
This appeal arises out of a dispute between the owners and charterers of a ship the "Baleares". The ship failed to reach the loading point by the cancelling date and on the following day the charterers cancelled the fixture, without prejudice to claims for damages. These claims were adjudicated upon by three arbitrators who on 9 February 1989 unanimously awarded a sum of damages to the charterers. The owners obtained leave to appeal to the High Court and by Order of 14 March 1990 Webster J. allowed the appeal and set aside the award. By that Order he certified two questions of law under section 1(7)( b) of the Arbitration Act 1979 but refused leave to appeal. For reasons which will become apparent later it is unnecessary for me to condescend upon these questions.
Section 1(7) of the Arbitration Act is in the following terms:
"No appeal shall lie to the Court of Appeal from a decision of the High Court on an appeal under this section unless -
( a) the High Court or the Court of Appeal gives leave; and
( b) it is certified by the High Court that the question of law to which its decision relates either is one of general public importance or is one which for some other special reason should be considered by the Court of Appeal."
The charterers then applied for leave to the Court of Appeal who, by a majority, Ralph Gibson and Leggatt L.JJ., Dillon L.J. dissenting, granted the application and refused leave to appeal to this House ( 1991 2 W.L.R. 794). In granting the application the majority took the view that the guidelines laid down by Lord Diplock in Pioneer Shipping Ltd. v. B.T.P. Tioxide Ltd. [1982] A.C. 724 (the "Nema") as to the criteria to be adopted in exercising discretion to allow an appeal from arbitrators did not apply to applications for leave to appeal to the Court of Appeal, whereas Dillon L.J. considered that they did. I need say no more about the decision of the Court of Appeal.
The owners then petitioned for leave to appeal to this House and the charterers lodged objections in terms of Practice Direction 9(iv) in which they submitted that the owners' petition for leave was incompetent as this House had no jurisdiction to entertain the appeal. Notwithstanding these objections an appeal committee of which two of your Lordships and I were members granted leave without an oral hearing on 7 March 1991.
At the outset of the hearing of the appeal Mr. Rokison for the charterers was invited to address your Lordships in support of the submission in their case that the appeal was incompetent. In support of his contention that a decision of the Court of Appeal granting or refusing leave under section 1(7) of the Act of 1979 was final and unappealable he relied on Lane v. Esdaile [1891] A.C. 210 and a number of later decisions. Mr. Goldsmith, for the owners, argued that the appeal was not excluded by section 1(7) and that the cases relied on by Mr. Rokison, while relevant to appeals from decisions refusing leave to appeal, did not apply to appeals from decisions granting it.
The jurisdiction of this House to hear appeals from the Court of Appeal derives from section 3 of the Appellate Jurisdiction Act 1876 which is in, inter alia, the following terms:
"Subject as in this Act mentioned an appeal shall lie to the House of Lords from any order or judgment of any of the courts following; that is to say, (1) of Her Majesty's Court of Appeal in England; …"
In Lane v. Esdaile [1891] A.C. 210 it was held that no appeal lay to this House from a refusal of the Court of Appeal to grant special leave to appeal from a judgment of the High Court when the time, limited by Ord. LVIII, rule 15, for appealing had expired. The Order so far as relevant was in the following terms:
"No appeal to the Court of Appeal from any interlocutory order, … shall, except by special leave of the Court of Appeal, be brought after the expiration of twenty-one days, and no other appeal shall, except by such leave, be brought after the expiration of one year …".
Lord Halsbury L.C. at p. 212 said:
"Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of Appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a...
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