White v Brunton
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE FOX,LORD JUSTICE STEPHEN BROWN |
| Judgment Date | 12 March 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0312-1 |
| Docket Number | 84/0047A |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 1984 |
[1984] EWCA Civ J0312-1
The Master of The Rolls
(Sir John Donaldson)
Lord Justice Fox
and
Lord Justice Stephen Brown
84/0047A
1978 W. No. 274
IN THE SUPREME COURT OF JUDICATURE
COURT of APPEAL (CIVIL Division)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MIDDLESBROUGH DISTRICT REGISTRY
(MR. JUSTICE McCULLOUGH)
Royal Courts of Justice.
MR. R. REID, Q.C. and MR. J. FRYER-SPEDDING (instructed by Messrs. Freeman Daly & Jacks of Darlington) appeared on behalf of the Appellant.
MR. R. STEWART, Q.C. and MR. B. SOMMERVILLE (instructed by Messrs. Latimer Hicks Marsham & Little of Darlington) appeared on behalf of the Respondent.
This is an appeal from a decision of Mr. Justice McCullough on a preliminary point. It has itself given rise to a preliminary point in this court, namely whether leave to appeal is required.
The starting point is clear enough. By section 18(1) (h) of the Supreme Court Act 1981, subject to certain immaterial exceptions, "no appeal shall lie to the Court of Appeal without the leave of the court or tribunal in question or of the Court of Appeal from any interlocutory order or interlocutory judgment." But, as is well known, this clarity conceals the obscurity of what is and is not an interlocutory order or judgment.
In Shubrook v. Tufnell (1882) 9 Queen's Bench Division 621 Sir George Jessel, M.R. and Lord Justice Lindley held, in effect, that an order is final if it finally determines the matter in litigation. Thus the issue of final or interlocutory depended upon the nature and effect of the order as made. I refer to this as the "order approach".
In Salaman v. Warner (1891) 1 Queen's Bench 734, in which Shubrook's case does not appear to have been cited, a Court of Appeal consisting of Lord Esher, M.R., Lord Justice Fry and Lord Justice Lopes held that a final order is one made on such an application or proceeding that, for whichever side the decision is given, it will, if it stands, finally determine the matter in litigation. Thus the issue of final or interlocutory depended upon the nature of the application or proceedings giving rise to the order and not upon the order itself. I refer to this as the "application approach".
In Bozson v. Altrincham District Council (1903) 1 King's Bench 547a Court of Appeal consisting of the Earl of Halsbury, L.C., Lord Alverstone, C.J. and Sir Francis Jeune, P. reverted to the order approach.
In re Page, Hill v. Fladgate (1910) 1 Chancery 489 a Court of Appeal consisting of Sir Herbert Cozens-Hardy, M.R., Lord Justices Fletcher Moulton and Buckley refused to apply the order approach to a case of striking out the proceedings, but declined to propound any rule of general application.
The next occasion upon which the problem was looked at on broad lines of principle was in Salter Rex & Co. v. Ghosh (1971) 2 Queen's Bench 597 where Lord Denning, M.R., with the agreement of Lord Justices Edmund-Davies and Stamp, considered and contrasted the judgment of Lord Alverstone, C.J. in Bozson's case with that of Lord Esher, M.R. in Salaman v. Warner. Lord Denning said, at page 601, "Lord Alverstone was right in logic, but Lord Esher was right in experience. Lord Esher's test has always been applied in practice…I would apply Lord Esher's test to an order refusing a new trial. I look to the application for a new trial and not to the order made. If the application for a new trial were granted, it would clearly be interlocutory. So equally, when it is refused, it is interlocutory.
"This question of 'final' or 'interlocutory' is so uncertain that the only thing for practitioners to do is to look up the practice books and see what has been decided on the point. Most orders have now...
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