R v Secretary of State for Trade and Industry, Ex parte Eastaway (Eastaway, Ex parte)

The House of Lords has no jurisdiction to entertain an appeal against the Court of Appeal’s refusal of permission to appeal. Although the literal language of section 3 of the Appellate Jurisdiction Act 1876 extends to any order or judgment of the Court of Appeal, it must be construed purposively. A further appeal would defeat the statutory filter intended to prevent unmeritorious appeals.

The Court of Appeal’s jurisdiction is exclusively appellate. Describing a challenge to the refusal of permission to seek judicial review as a renewed application does not alter its character. Where permission to appeal was required and the Court of Appeal determined the challenge without granting it, permission is treated as having been implicitly refused.

The Secretary of State decided to continue company-director disqualification proceedings against the applicant. The applicant sought permission to apply for judicial review of that decision and a later decision. Collins J refused permission on paper, Sullivan J refused it after an oral hearing, and Buxton LJ refused the subsequent application to the Court of Appeal.

An Appeal Committee granted leave to appeal so that the House could determine its own jurisdiction. The central issue was whether the House could entertain the appeal when the Court of Appeal had implicitly refused the permission to appeal required by the applicable legislation and rules.

1. Disposition. Lord Bingham of Cornhill delivered the leading speech. Lord Steyn, Lord Hoffmann, Lord Clyde and Lord Millett agreed with his reasons and proposed order. The House unanimously ruled that it had no jurisdiction to entertain the appeal. There was no order for costs in the House.

2. Nature of the Court of Appeal proceedings. Per Lord Bingham, the Court of Appeal’s jurisdiction was exclusively appellate. The applicant’s challenge to Sullivan J’s refusal was therefore an appeal, despite earlier practice describing such proceedings as renewed applications. There was no legal category of an appeal which was not a true appeal.

3. Permission to appeal. The applicant required permission both to apply for judicial review and to appeal against the refusal of that permission. Sullivan J had not granted permission to appeal. The Court of Appeal could entertain the challenge only if it granted such permission. Its decision describing the application as misconceived therefore necessarily included an implicit refusal of permission to appeal.

4. Jurisdiction of the House. The rule in Lane v Esdaile [1891] AC 210 construed section 3 of the Appellate Jurisdiction Act 1876 as excluding an appeal to the House from the Court of Appeal’s refusal of leave to appeal. Allowing a further appeal would defeat the purpose of the permission requirement as a filter against appeals lacking a realistic prospect of success. The applicant’s challenge consequently fell within that rule.

5. Relationship between the two permission filters. Per Lord Bingham, permission to apply for judicial review principally protects public bodies from weak or vexatious claims. Permission to appeal principally protects the courts from unmeritorious appeals. Kemper Reinsurance Co v Minister of Finance and Others [2000] 1 AC 1 and In re Poh [1983] 1 WLR 2 concerned only the first filter. This case involved both. The implicit refusal of permission to appeal distinguished it from Kemper and brought it within Lane v Esdaile.

6. Constitutional function. Lord Bingham added that the House, as the supreme court, had to concentrate on cases raising legal questions of general public importance. It could not review alleged errors in the application of settled law merely because an applicant sought another consideration of the merits.

1. House of Lords: The House unanimously ruled in [2000] UKHL 56 that it lacked jurisdiction to entertain the appeal because the Court of Appeal had implicitly refused permission to appeal.

2. Court of Appeal: Buxton LJ refused the applicant’s application after an oral hearing and described it as misconceived. The House treated that determination as including an implicit refusal of permission to appeal.

3. High Court: Collins J refused permission to apply for judicial review on paper. Sullivan J refused permission again following an oral hearing.