R (Eastaway) v Secretary of State for Trade and Industry
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD STEYN,LORD HOFFMANN,LORD CLYDE,LORD MILLETT |
| Judgment Date | 02 November 2000 |
| Judgment citation (vLex) | [2000] UKHL J1102-2 |
| Date | 02 November 2000 |
| Court | House of Lords |
[2000] UKHL J1102-2
Lord Bingham of Cornhill
Lord Steyn
Lord Hoffmann
Lord Clyde
Lord Millett
HOUSE OF LORDS
My Lords,
On 30 June 1999 the Secretary of State for Trade and Industry decided to continue proceedings against Mr. Eastaway ("the applicant") under section 6 of the Company Directors Disqualification Act 1986. On 18 August 1999 the applicant made application for permission to apply for judicial review of that decision and also a later decision of the Secretary of State. Permission to apply was refused on paper on grounds clearly but succinctly stated by Collins J. There followed an oral hearing before Sullivan J., with both sides represented, when permission was again refused on 27 January 2000. The applicant made application for permission to apply for judicial review to the Court of Appeal, and permission was refused by Buxton L.J. on 15 March 2000 following an oral hearing with both sides again represented. In the course of a considered judgment Buxton L.J. described the application as "misconceived". The applicant thereupon sought permission to present a petition of appeal to this House. On 11 July 2000 an Appeal Committee granted the applicant's petition for leave to appeal so that the House might have an opportunity to consider whether it has jurisdiction to entertain an appeal in these circumstances. That is the issue now before the House.
The legislative background
By section 31(3) of the Supreme Court Act 1981 and rule 53.3(1) of the Civil Procedure Rules a party may not apply for judicial review unless the permission of the court has been obtained. It is unnecessary to recite the terms of these familiar provisions.
A refusal of permission by the judge may be challenged in the Court of Appeal. Section 15 of the Supreme Court Act 1981 defines the general jurisdiction of the court, and section 16(1) confers jurisdiction to hear and determine appeals from any judgment or order of the High Court subject to exceptions irrelevant for present purposes. Section 18(1) provided that no appeal shall lie to the Court of Appeal in certain specified categories of case. Section 18(1A) provided:
"In any such class of case as may be prescribed by rules of court, an appeal shall lie to the Court of Appeal only with the leave of the Court of Appeal or such court or tribunal as may be specified by the rules in relation to that class."
Section 18(1A) reflected a tendency evident over many years to subject recourse to the Court of Appeal to a requirement of leave. Section 54(6) of the 1981 Act provided that applications to the Court of Appeal for leave to appeal to that court might be determined by a single judge of that court, from whose decision no appeal should lie. This requirement of leave was reflected in the relevant rules of court. With effect from 1 January 1999 Order 59 rule 1B provided:
"(1) Every appeal shall be subject to leave except an appeal against -
(a) the making of a committal order; (b) a refusal to grant habeas corpus; or (c) an order under section 25 of the Children Act 1989 (secure accommodation orders).
(2) Leave to appeal to the Court of Appeal may be given by the court below or by the Court of Appeal."
Rule 59.14 governed the procedure for applying to the Court of Appeal and in sub-rule (3) provided:
"Where an application without notice being served on any other party has been refused by the court below, an application for a similar purpose may be made to the Court of Appeal without notice being served on any other party within 7 days after the date of the refusal."
This was directed to the special position where permission had been refused without notice to the proposed respondent. In Practice Direction (Judicial Review: Appeals) [1982] 1 WLR 1375 Lord Lane C.J. and Sir John Donaldson M.R. gave a practice direction on recourse to the Court of Appeal following refusal of leave to apply for judicial review by a Divisional Court or a single judge, describing such a refusal as "appealable to the Court of Appeal". The practice direction did not refer to any requirement of leave or permission to appeal, since at that time there was no such requirement.
On 19 April 1999, shortly before the new Civil Procedure Rules were to come into effect on 26 April 1999, Lord Woolf M.R. gave a practice direction consolidating with some amendments the principal practice directions governing proceedings in the Court of Appeal: see Practice Direction (Court of Appeal (Civil Division)) [1999] 1 WLR 1027. This Practice Direction contained the following paragraph:
"2. Permission to appeal
2.1 When is permission required?
2.1.1. Most appeals require the permission of the court below (the court which made the decision which is challenged) or of the Court of Appeal to bring an appeal.
2.1.2 Since 1 January 1999, permission has been required for all appeals except appeals against: (a) committal orders; (b) refusals to grant habeas corpus; and (c) secure accommodation orders made pursuant to section 25 of the Children Act 1989: see RSC, Ord. 59 r. 1B(1)(a)-(c).
2.1.3 The experience of the Court of Appeal is that many appeals and applications for permission to appeal are made which are quite hopeless. They demonstrate basic misconceptions as to the purpose of the civil appeal system and the different roles played by appellate courts and courts below. The court below has a crucial role in determining applications for permission to appeal. This guidance indicates how applicants, and courts, should approach the matter."
Paragraph 2.7 of the Practice Direction read as follows:
"Renewed applications for permission to apply for judicial review
2.7.1 The applicant's advocate (and where any respondent will be represented at the Court of Appeal hearing, that party's advocate) must file four copies of their skeleton arguments with the Civil Appeals Office with the application bundles.
2.7.2 This applies only to renewed applications for permission to apply for judicial review. Where permission to apply has been granted and the substantive application for judicial review has been dealt with in the High Court, any application to the Court of Appeal for permission to appeal against that decision will be governed by the general provisions for such applications."
Section 54 of the Access to Justice Act 1999, which was contained in Part IV of the Act and came into force on 27 September 1999, provided so far as relevant to this appeal as follows:
"(1) Rules of court may provide that any right of appeal to
…
(c) the Court of Appeal, may be exercised only with permission.
…
(3) For the purposes of subsection (1) rules of court may make provision as to -
(a) the classes of case in which a right of appeal may be exercised only with permission,
(b) the court or courts which may give permission for the purposes of this section,
(c) any considerations to be taken into account in deciding whether permission should be given, and
(d) any requirements to be satisfied before permission may be given,
and may make different provision for different circumstances.
(4) No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court)."
The Civil Procedure (Amendment Rules) 2000 (SI 221/2000), which so far as relevant came into effect on 2 May 2000, inserted a new Part 52 into the Rules. That Part was set out in Schedule 5 to the statutory instrument, and provided in rule 52.3 and 52.15 that permission to appeal to the Court of Appeal against refusal of a judge to grant permission to apply for judicial review is required, whether from the lower court or the Court of Appeal. If those rules governed this case it would be clear, as counsel for the applicant accepts, that their effect is to preclude the House from entertaining...
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