Westminster City Council v O'Reilly

JurisdictionEngland & Wales
JudgeLord Justice Auld,LORD JUSTICE AULD,LORD JUSTICE CLARKE,THE LORD CHIEF JUSTICE
Judgment Date01 July 2003
Neutral Citation[2003] EWCA Civ 1007
Docket NumberC1/2003/0567
CourtCourt of Appeal (Civil Division)
Date01 July 2003
Between:
Horseferry Road Justices & Ors
Appellants
and
The Lord Mayor and the Citizens of the City of Westminster
Respondent

[2003] EWCA Civ 1007

Before:

The Lord Chief Justice of England and Wales

(the Lord Woolf of Barnes)

Lord Justice Auld and

Lord Justice Clarke

C1/2003/0567

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

(MR JUSTICE MACKAY)

QUEEN'S BENCH DIVISION

MR JOHN SAUNDERS QC (instructed by Messrs Jeffey Green Russell,

London W1S 1RG) appeared on behalf of

THE PROPOSED APPELLANTS (INTERESTED PARTIES)

MR JAMES RANKIN (instructed by the Director of Legal & Administrative Services, City of Westminster Council, London SW1) appeared on behalf of THE RESPONDENT

(

Tuesday 1 July 2003

THE LORD CHIEF JUSTICE: Lord Justice Auld will give the first judgment.

LORD JUSTICE AULD
1

This matter comes before the court as an appeal, with the permission of Mackay J, by the Horseferry Road Justices and interested parties against the decision on 28 February 2003 on a case stated by the justices relating to a licensing matter.

2

The issue of substance raised by the purported appeal to this court is whether a Special Hours Certificate under section 77A(3) of the Licensing Act 1964 granting an extension of permitted hours for on-licence premises may be granted in respect of part of the premises for which no music and dancing licence had been granted.

3

The effective would-be appellants are the holders of the on-licence and the Special Hours Certificate. The respondent to the proceedings before this court is the Westminster City Council.

4

Mackay J held, contrary to the view of the justices, in allowing Westminster City Council to appeal to him on the case stated, that section 77A does not permit the grant of a Special Hours Certificate for part of on-licence premises in respect of which part there is no music and dancing licence. In granting permission to appeal to this court, Mackay J stayed his order pending the outcome of the appeal.

5

First, the court must decide whether it has jurisdiction to determine the matter at all. That is a question to which Master Venne, the Head of the Civil Appeals Office, has drawn our and counsel's attention.

6

By section 28A(4) of the Supreme Court Act 1981, a decision of the High Court on appeal to it by way of case stated from a magistrates' court under section 111 of the Magistrates' Court Act 1980, not on any criminal cause or matter, is "final". 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 its jurisdiction to hear and determine appeals "from any judgment or order 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.

8

No point as to this finality was taken before or by Mackay J when Mr John Saunders QC, who appeared on behalf of the licensees, asked the judge for permission to appeal. Understandably perhaps, neither counsel nor the judge had this statutory restriction in the forefront of their minds at the time. It has happened before and it will no doubt happen again.

9

Mr Saunders, who appears again today for the licensees, has sought to overcome this statutory jurisdictional barrier by resort to the Rules of Court and provisions made in the Access to Justice Act 1999. His starting point is in sections 54(1) and 55 of the 1999 Act, which provide respectively for the provision by Rules of Court to subject the exercise of any right of appeal to permission, and for direct statutory criteria governing the Court of Appeal's own acceptance of jurisdiction on second appeals. This, said Mr Saunders, is a second appeal, coming as it does from a first appeal to the High Court, and section 55(1) applies. It provides:

"Where an appeal is made to the High Court in any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal unless the court considers that —

(a) the appeal would raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

By that route Mr Saunders took the court, briefly in his oral submissions, but more fully in his skeleton argument, to the Access to Justice Act 1999 (Destination of Appeals) Order 2000, Article 5 of which provides:

"Second appeals from the County Court or to the High Court lie only to the Court of Appeal."

Mr Saunders suggested (albeit softly) that the effect of those provisions in and derived from the 1999 Act gave 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 those 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.

11

If further reassurance as to that conclusion were needed, it could be found in the fact that the finality provision in section 28A(4) was inserted by a provision in the Statute Law Revision Act 1999 and substituted by the Access to Justice Act 1999 itself. This is not new ground. This court considered this...

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6 cases
  • John Butland v Powys County Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 4 February 2009
    ...of Appeal that it had had no jurisdiction to hear the appeal: see sections 18(1) and 28A of the Supreme Court Act 1981 and Westminster City Council v O'Reilly [2003] EWCA Civ 1007, [2004] 1 WLR 195. Accordingly, on 19 December 2007 the Court of Appeal made a further order that its order da......
  • Secretary of State for the Home Department v BM
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 15 January 2009
    ...looked into. I draw to your attention a case which was enclosed with my papers by the Administrative Court office, which is Westminster City Council v O'Reilly [2004] 1 WLR 195. You are asking me to…? 66 MR HOLDCROFT: I am not asking for permission, because your Lordship cannot give it, but......
  • R (G) v Immigration Appeal Tribunal
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 25 March 2004
    ...to the doctrine as it applies to the acts of bodies other than Courts of law. I was pressed with Westminster City Council v O'Reilly [2004] 1 W.L.R. 195. Section 28A of the Supreme Court Act 1981 provides that a decision of the High Court on an appeal by way of Case Stated which is not in ......
  • Farley v Secretary of State for Work and Pensions (No 2); Farley v Child Support Agency
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 June 2005
    ...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 de......
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