Secretary of State For Trade and Industry; Ex Parte Eastaway, R v.

The House considered whether it had jurisdiction to entertain an appeal against the Court of Appeal's refusal to grant leave to appeal from a judge's refusal of permission to apply for judicial review. The Court held that, applying the purposive construction of section 3 of the Appellate Jurisdiction Act 1876 and the authorities such as Lane v. Esdaile, an appeal to the House against an effective refusal of leave to appeal by the Court of Appeal is not entertainable. The judgment emphasised the proper operation of statutory and procedural 'filters' (permission to apply for judicial review and permission to appeal) and concluded that allowing such an appeal would subvert those filters and the constitutional function of the House.

Background and parties:

• The applicant (Mr Eastaway) sought permission to apply for judicial review of a decision by the Secretary of State for Trade and Industry to continue proceedings under section 6 of the Company Directors Disqualification Act 1986.
• Permission to apply for judicial review was refused by Collins J. on paper and again after oral hearing by Sullivan J. The applicant applied to the Court of Appeal; Buxton L.J. refused permission on 15 March 2000. The applicant then petitioned the House of Lords for leave to appeal, and an Appeal Committee granted leave to consider whether the House had jurisdiction.

Nature of the application and issues:

• (i) The relief originally sought was permission to apply for judicial review of the Secretary of State's decisions.
• (ii) The principal legal issue before the House was whether it had jurisdiction to hear an appeal from the Court of Appeal's refusal (express or implied) to grant leave to appeal against the refusal of permission to apply for judicial review.
• (iii) Secondary issues included the interaction of relevant statutory provisions and rules (including provisions of the Supreme Court Act 1981, the Appellate Jurisdiction Act 1876 and the Access to Justice Act 1999) and authority from earlier cases such as Lane v. Esdaile, In re Poh and Kemper Reinsurance.

Court's reasoning and conclusion:

• The House reviewed the statutory and procedural framework: the requirement of permission to apply for judicial review (section 31(3) Supreme Court Act 1981 and rule 53.3 of the Civil Procedure Rules), the Court of Appeal's appellate jurisdiction (sections 15–18 of the Supreme Court Act 1981), the historic rule that appeals against refusals of leave are not permitted (Lane v. Esdaile), and later authorities which clarified the appellate character of applications to the Court of Appeal (Kemper, In re Poh).
• The House accepted that the Court of Appeal's jurisdiction is exclusively appellate and that, as a matter of principle and precedent, appeal to the House against a refusal of leave to appeal is barred. The applicant had not obtained permission to appeal from the judge below and did not obtain express permission from the Court of Appeal; the Court of Appeal must be taken to have refused permission to appeal. To permit an appeal to the House would defeat the statutory and procedural safeguards designed to filter weak or vexatious claims and would be inconsistent with the limited constitutional role of the House to decide points of general public importance.
• The House therefore held it had no jurisdiction to entertain the appeal and made no order for costs in this House.

The House held that it had no jurisdiction to entertain the appeal (appeal dismissed). The court reasoned that, following Lane v. Esdaile and subsequent authorities, an appeal to the House is precluded where the Court of Appeal has refused leave to appeal against a refusal of permission to apply for judicial review; allowing such appeals would subvert the statutory and procedural permission filters and the constitutional role of the House.

Permission to apply for judicial review refused by Collins J. (on paper) and by Sullivan J. after oral hearing (27 January 2000). Application to the Court of Appeal refused by Buxton L.J. (15 March 2000). Appeal Committee of the House granted petition for leave to appeal on 11 July 2000 to consider the House's jurisdiction. House of Lords determined it lacked jurisdiction on 2 November 2000 ([2000] UKHL 56).