Van Stillevoldt (C. M.) B.v v E.L. Carriers Inc.
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GRIFFITHS |
| Judgment Date | 09 December 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J1209-6 |
| Docket Number | 82/0499 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 December 1982 |
[1982] EWCA Civ J1209-6
Lord Justice Griffiths
82/0499
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(MR. JUSTICE STAUGHTON)
Royal Courts of Justice.
MR. IAIN MILLIGAN (instructed by Messrs. Sinclair, Roche & Temperley) appeared on behalf of the (Plaintiffs) Applicants.
MR. EDMUND BROADBENT (instructed by Messrs. Richard Butler & Co.) appeared on behalf of the (Defendants) Respondents.
This is an appeal to a single judge of the Court of Appeal from the refusal of the registrar of the Court of Appeal to extend the time for setting down an appeal. I am giving judgment in open court at the invitation of the parties because a point of general importance has been argued concerning the nature of the jurisdiction of a single judge of the Court of Appeal when hearing an appeal from the registrar under the new provisions of order 59, rule 14.
The plaintiffs (the appellants) submit that my jurisdiction is the same as that of a judge in chambers when hearing an appeal from a master or registrar. It is well-settled that in such cases the judge is in no way fettered by the master's or the registrar's decision. It is the duty of the judge to consider the matter afresh and to exercise his own discretion, of course having due regard to the decision below but being in no way inhibited by it in the exercise of his discretion. By contrast, if the judge's decision is then appealed to the Court of Appeal, the Court of Appeal will only interfere if it is satisfied that the judge has exercised his discretion wrongly, applying principles to that determination which are now too well-established to require repeating.
The defendants (respondents), however, submit that my function is limited to a review of the manner in which the registrar exercised his discretion, and only if satisfied that it has been wrongly exercised am I free to consider the case anew. In short, the respondents submit that my jurisdiction is that of the Court of Appeal reviewing the discretion of the judge.
This appeal, as will shortly appear, is nicely balanced, and the nature of my jurisdiction is of crucial—not academic importance.
I turn now to consider the relevant statutory provisions and the new provisions of rule 14. Section 58 of the Supreme Court Act 1981 provides:
"(1) Any jurisdiction exercisable in any proceedings incidental to any cause or matter pending before the civil division of the Court of Appeal and not involving the determination of an appeal may, if and so far as rules of court so provide, be exercised (with or without a hearing) by a single judge of that court whether in court or in chambers, or by the registrar of civil appeals.
"(2) Rules of court may provide for decisions of a single judge or the registrar of civil appeals acting by virtue of subsection (1) to be called in question in such manner as may be prescribed; but, except as may be provided by rules of court, no appeal shall lie from a decision of a single judge or that registrar so acting."
I turn now to consider the new provisions of order 59, rule 14. The relevant ones are to be found in sub-rules (11) and (12). Sub-rule (11) reads:
"An appeal shall lie to a single judge upon any determination made by the registrar and shall be brought by way of fresh application made within ten days of the determination appealed against."
Sub-rule (12):
"An appeal shall lie to the Court of Appeal on any determination by a single judge under this order and shall be brought by way of fresh application made within ten days of the determination appealed against provided that an application shall not lie to the Court of Appeal without the leave of that court in respect of the determination of the registrar which has been reviewed by a single judge."
The appellants point to the words in sub-rule (11) which indicate that the appeal to the single judge is to be by way of fresh application, and they rely upon those words as a clear indication that the judge is intended to hear the matter afresh and to decide it by applying his own judgment and discretion to the issues before him.
In answer to that the respondents point out that in sub-rule (12) precisely the same wording is used in respect of the appeal to the full Court of Appeal from the decision of the single judge. Furthermore, they draw attention to the concluding words of sub-rule (12), "provided that an application shall not lie to the Court of Appeal without the leave of that court in respect of the determination of the registrar which has been reviewed by a single judge", and they submit that the use of the word "reviewed" indicates that it is the intention of the rule that the decision of the registrar should be approached in the same way as the Court of Appeal will ordinarily review the decision of a judge of the High Court, namely that it will recognise that the discretion is that of the judge and not of the Court of Appeal and only interfere if the discretion has in their judgment been wrongly exercised, albeit that, if they had been considering the matter afresh themselves, they might not have exercised the discretion in the same manner as the judge.
I see the weight of that argument but it is, in my view, to read too much into the use of the word "reviewed" in the proviso. I believe that to be no more than a shorthand way of referring to the fact that there has been an appeal from the registrar.
I remind myself of the words of Lord Atkin in Evans v. Bartlam (1937) Appeal Cases 473. It will be remembered that that was the authority which finally settled the nature of the jurisdiction exercised by a judge when hearing an appeal from a master. Lord Atkin said at page 478:
"I only stay to mention a contention of the respondent that the Master having exercised his discretion the judge in Chambers should not reverse him unless it was made evident that the Master has exercised his discretion on wrong principles. I wish to state my conviction that where there is a discretionary jurisdiction given to the Court or a judge the judge in Chambers is in no way fettered by the previous exercise of the Master's discretion. His own discretion is intended by the rules to determine the parties' rights: and he is entitled to exercise it as though the matter came before him for the first time. He will, of course, give the weight it deserves to the previous decision of the Master: but he is in no way bound by it. This in my experience has always been the practice in Chambers, and I am glad to find it confirmed by the recent decision of the Court of Appeal in Cooper v....
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...provided by the rules is essential to the orderly conduct of business in the Court of Appeal:” C M Van Stillevoldt BV v. El Carriers [1983] 1 All E.R. 699 at 703 per Griffiths, L.J. He was dealing with an appeal to a single judge of the Court of Appeal from a refusal of the Registrar of th......
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