Colley v Council for Licensed Conveyancers

A statutory right of appeal to the High Court against disciplinary orders concerning licensed conveyancers extends to the enforcement of directions relating to inadequate professional services.

Although rules and practice directions may lawfully require permission for statutory appeals, Civil Procedure Rules 1998 Part 52 and its associated Practice Direction did not impose such a requirement by general incorporation. An existing unrestricted statutory appeal requires explicit positive provision before permission is required.

A statutory finality clause applying to a decision made on an appeal does not prevent the Court of Appeal from correcting a lower court's mistaken assumption that permission was necessary, where that assumption involved neither a decision nor consideration of the merits.

The Council for Licensed Conveyancers made two disciplinary orders against a licensed conveyancer. The June order enforced an earlier direction concerning inadequate professional services and awarded costs. The August order suspended his practising licence and awarded costs.

Owen J refused permission to seek judicial review because section 26(7) of the Administration of Justice Act 1985 provided a statutory appeal. Blofeld J subsequently assumed that permission was required under Part 52 of the Civil Procedure Rules 1998. He granted limited permission concerning the June order and refused permission concerning the August order.

The Court of Appeal considered whether the statutory appeal covered the June order, whether permission was required for either appeal, and whether the finality provision in section 26(8) excluded its jurisdiction.

Appeal allowed unanimously. The Vice-Chancellor delivered the judgment of the Court, constituted with May and Dyson LJJ.

1. Section 26(7) of the Administration of Justice Act 1985 conferred a right of appeal against the June decision. Before the amendments made by the Courts and Legal Services Act 1990, inadequate professional services had been dealt with under section 26 and were subject to that appeal. Section 53(9) of the 1990 Act required Part II of the 1985 Act, with necessary modifications, to apply to corresponding matters under Schedule 8. A direction enforced under Schedule 8 paragraph 17(2) therefore carried the same right of appeal. Requiring judicial review for that direction while permitting an appeal against a related section 26 order would produce an absurd procedural division.

2. Section 54(1) of the Access to Justice Act 1999 authorised rules requiring permission for any statutory appeal to a county court, the High Court or the Court of Appeal. The Civil Procedure Act 1997 also authorised rules to refer procedural matters to practice directions. A permission requirement could therefore lawfully be created by a practice direction.

3. Part 52 of the Civil Procedure Rules 1998 and paragraph 17.2 of its Practice Direction did not, however, impose that requirement. Rule 52.3(1)(b) contemplated specific provision in a practice direction. The general statement that Part 52 applied to statutory appeals was insufficient because Part 52 itself did not require permission for those appeals. The diverse and inconsistent special provisions in Section III confirmed that explicit positive provision was necessary.

4. The permission procedure was not intrinsically a denial of access to a court. It allowed a hearing and filtered appeals lacking a real prospect of success or another compelling reason. Nevertheless, no such filter had validly been imposed on these statutory appeals.

5. Section 26(8) of the 1985 Act did not exclude the Court of Appeal's jurisdiction. Blofeld J's shared assumption that permission was required was neither a decision on the appeal nor a consideration of its merits.

The Court declared that section 26(7) covered both decisions and that permission was unnecessary. It set aside the relevant parts of Blofeld J's orders and directed an expedited High Court hearing. There was no order for costs.

1. Court of Appeal: Allowed the appeal in [2001] EWCA Civ 1137. It declared that section 26(7) covered both disciplinary decisions and that permission to appeal was unnecessary. The relevant parts of Blofeld J's orders were set aside.
2. High Court, Blofeld J: Granted limited permission to appeal concerning the June decision and refused permission concerning the August decision, on the shared assumption that permission was required.
3. High Court, Owen J: Refused permission to apply for judicial review because section 26(7) of the Administration of Justice Act 1985 provided a statutory appeal.