Re Uddin (A Child) (serious injury: standard of proof)
| Jurisdiction | England & Wales |
| Judge | the President,The President |
| Judgment Date | 24 February 2005 |
| Neutral Citation | [2005] EWCA Civ 52 |
| Docket Number | Case No: B4/04/0182(B) |
| Court | Court of Appeal (Civil Division) |
| Date | 24 February 2005 |
[2005] EWCA Civ 52
The President
Lord Justice Thorpe and
Lord Justice Laws
Case No: B4/04/0182(B)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY
(MRS JUSTICE BRACEWELL)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Peter Jackson QC and Miss Catherine Wood (instructed by Harman and Harman) for the Applicant
Miss Judith Rowe QC (instructed by Miss Nabila Zulfiqar on behalf of Birmingham City Council) for the First Respondent
Mr Andrew Scott (instructed by Pye-Smiths) for the Second Respondent
Mrs Margaret Hodgson (instructed by Carole Burgher) for the Third Respondent
Dame Elizabeth Butler-Sloss P.:
This is the judgment of the Court to which all members of the court have contributed. It concerns a little girl, Layla Uddin, born on the 11 th July 2001.
The case returned to the Court of Appeal on the 8 th December for further consideration of the refusal of the Court of Appeal ( The President, Thorpe LJ and Mantell LJ) to grant permission to appeal on the 4 th March 2004 (see the judgment of the court of the 14 th May 2004, reported [2004] 3 WLR 753. The further application is made subject to the principles in Taylor v Lawrence [2003] QB 528, [2002] EWCA Civ 90 and the provisions of CPR 52.17.
We gave our decision to refuse the renewed application to the parties on the 14 th December 2004 and provided a short Press release. We now give our reasons for our decision.
The application of the principles of Taylor v Lawrence
CPR 52.17 is headed "Reopening of final appeals". 52.17(1) provides:
"The Court of Appeal or the High Court will not reopen a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy."
By paragraph (2) "appeal" includes an application for permission to appeal. There is no doubt that this rule is specifically intended to reflect the reasoning in the judgment of this court in Taylor v Lawrence. While this authority is very well known in the legal profession, it seems to us especially important to explain its effect in the context of our decision in this case. There is a pressing public interest, which has to be understood, in confining the circumstances in which the court will reopen an appeal that has already been finally determined to cases of the most exceptional kind; and this is so across all areas of the law, including family law. Accordingly we make no apology for addressing the authority of Taylor v Lawrence in some detail.
In that case judgment had been given against the defendants in a county court action. They appealed in part on the ground of an appearance of bias by the judge. It emerged that the judge and his wife had engaged the claimants' solicitors to amend their wills the night before judgment was given in the action. The appeal was dismissed in January 2001. Later, the defendants learnt that the judge had not paid for the services provided by the solicitors during the trial. The defendants applied for permission to reopen their appeal. The application was heard and determined by a constitution of five judges of this court (Lord Woolf CJ, Lord Phillips of Worth Matravers MR, Ward, Brooke and Chadwick LJJ). As is made clear in the judgment of the court delivered by the Lord Chief Justice, a court of five was exceptionally constituted in order to resolve the important issue of jurisdiction that arose in the case, namely whether there is any power at all to reopen an appeal which has been finally determined.
It was submitted by Mr Corner acting as advocate to the court that the Court of Appeal enjoys no such power. He cited much learning, not least the decision in Flower v Lloyd 6 Ch D 297, in which Sir George Jessel MR concluded at 300–301 that if the Court of Appeal "has once determined an appeal, it has no further jurisdiction". There were some dicta which went the other way. The court noted more than once that a judgment obtained by fraud could be set aside by order of the court in a fresh action brought for the purpose, and such recourse could no doubt be had as readily in a case where the judgment impugned was that of the Court of Appeal as where it had been given at first instance. But this, of course, does not in truth involve the reopening of concluded proceedings in the sense in which that is sought to be done here, and was attempted in Taylor v Lawrence. It is one thing to re-litigate an issue where the vehicle for doing so is the very same set of proceedings in which the issue had earlier been concluded. It is quite another to bring a fresh action to impugn an earlier judgment.
As the court pointed out at 540, the availability of a claim to set aside a judgment obtained by fraud does not mean there are no other situations where serious injustice may occur if there is no power to reopen an appeal. And so the court proceeded to consider, and ultimately to accept (though in guarded terms), the submission by counsel for the defendants to the effect that the Court of Appeal indeed possessed the jurisdiction to reopen previously concluded decisions of its own.
The argument was put three ways. First it was said that the relevant jurisdiction was to be found in the County Court Rules 1981, as transposed to the Court of Appeal by force of s.15(3) of the Supreme Court Act 1981 (which we will not cite). Secondly, it was said that there existed a jurisdiction analogous to that discussed in Wood v Gahlings, The Times, 29 November 1996. Lastly, another analogy was put forward, with that class of cases in which, in special and exceptional instances, the Court of Appeal has exercised a power to reopen its judgments in order to oversee and regulate the implementation and enforcement of its own orders.
The first ground was rejected in short order and we need say no more about it. Wood v Gahlings was a case where there was a further appeal after a retrial. At the further appeal it was submitted that a fraud had been practised on this court hearing the appeal after the first trial. It was held that the accusation of fraud was not established, but observations were made obiter by Lord Woolf MR (as he then was) and Aldous LJ "suggesting that there was power in this court in the appropriate circumstances to intervene if actual fraud could be established". The court in Taylor v Lawrence observed:
"Fraud has always been treated as an exceptional case… If, however, it is arguable that the Court of Appeal is able to reopen a decision where it has been obtained by fraud, this opens the door to the argument that there is jurisdiction to reopen an appeal in other exceptional cases."
What was in contemplation here was not the bringing of a fresh action to set aside a judgment based on fraud, but rather the actual reopening, and thus rehearing, of the appeal in which the fraud was said to have been practised.
As regards the third argument raised to support a jurisdiction to reopen a concluded appeal, the court in Taylor v Lawrence drew attention to two family cases, In re C (A Child) and In re J (A Child), both unreported. In the first of these Dame Elizabeth Butler-Sloss P drew attention to the fact that in Hague Convention cases the Court of Appeal "inevitably has a continuing jurisdiction for the purpose of implementation; as it has in other forms of civil litigation, but particularly in family cases". However, with respect it is to be noted that this form of "continuing jurisdiction" is in principle no more controversial than the court's everyday grant of a liberty to apply when in handing down a final judgment it perceives that there may be difficulties, not then and there identifiable, in carrying the court's order into effect; and the court in In re C was not saying anything at variance with this.
In the second case, however ( In re J), the court made observations which touch more closely the true question of jurisdiction raised in Taylor v Lawrence. Dame Elizabeth Butler-Sloss P referred to "the possibility of a residual power in the court with the final decision-making process [to set aside an earlier final order]… if… there is some factor outside the decision in the case itself… It would have… to be a factor that flawed the decision, and a factor which was outside the ambit of the decision itself". Robert Walker LJ (as he then was) referred to "a very limited residual class of cases in which in quite extraordinary circumstances a decision might be revisited." And he recalled the example given by Lord Donaldson of Lymington MR in which by mistake a Lord Justice determined an appeal by reference to the wrong set of case papers. May LJ envisaged, but did not affirm, the possibility that the Court of Appeal enjoyed a jurisdiction similar to that exercised by the House of Lords in Ex p. Pinochet (No 2) [2000] 1 AC 119.
The court in Taylor v Lawrence then entered into some discussion of the Pinochet case, emphasising that the reasoning which allowed an earlier order of the House of Lords to be revisited depended on the status of the House as a final appellate court. That was a premise not automatically applicable to the Court of Appeal; but "… in some cases no appeal will lie to the House of Lords and in others an appeal to the House of Lords will not be appropriate. Thus for practical purposes in many cases this court is the final court of appeal. The difference between this court and the House of Lords is therefore one of degree…" Then a little later:
"It...
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