Boardman v Portman

A single Lord Justice exercising the Court of Appeal’s jurisdiction under Supreme Court Act 1981 gives a decision of that court. A further appeal from that decision to the Court of Appeal is impossible. Where permission to appeal has been refused after an oral hearing, the statutory bar on an appeal against a permission decision also prevents an appeal to the House of Lords. This remains so where the judge is alleged to have erred in law or exercised the discretion improperly. The Civil Procedure Rules provide reconsideration only where permission is refused without a hearing. The European Convention on Human Rights does not guarantee a right of appeal in civil cases.

Mr Boardman appealed to the High Court under section 18 of the Audit Commission Act 1998 against a district auditor’s refusal to certify. Elias J dismissed the appeal and refused permission to appeal to the Court of Appeal. Mance LJ, on a renewed application heard in open court, also refused permission.

Mr Boardman challenged directions stating that no further appeal or review was available. The central issue was whether a single Lord Justice, having refused permission after an oral hearing, had made a decision open to challenge before other Lords Justices or the House of Lords.

1. Application refused. A single Lord Justice refusing permission to appeal after an oral hearing makes a decision of the Court of Appeal. That decision cannot be appealed to the Court of Appeal again.
2. Section 54(2) of the Supreme Court Act 1981 permits a court to be duly constituted by one or more judges. Mance LJ was therefore exercising the jurisdiction of the Court of Appeal.
3. Section 54(4) of the Access to Justice Act 1999 prevents an appeal against a decision giving or refusing permission to appeal, subject to any further application allowed by rules of court. It prevented an appeal to the House of Lords from Mance LJ’s decision.
4. Section 16(1) of the Supreme Court Act 1981 confers jurisdiction on the Court of Appeal to hear and determine appeals from the High Court. It does not create a further appeal from one constitution of the Court of Appeal to another.
5. Rule 52.3 of the Civil Procedure Rules 1998 permits a further application for permission where the lower court refused permission. Reconsideration after an appeal court refusal is available only where the refusal was made without a hearing. That route was unavailable because Mance LJ heard the application in open court.
6. The European Convention on Human Rights did not alter the result. Following Delcourt v Belgium [1970] 1 EHRR 355, there was no Convention guarantee of a right of appeal in civil cases.
7. The transcript was ordered to be prepared at public expense and sent to the Civil Appeals Office and the Judicial Office of the House of Lords. There was no order for costs.

• Queen’s Bench Division, Administrative Court: Elias J dismissed the appeal under section 18 of the Audit Commission Act 1998 and refused permission to appeal.
• Court of Appeal (Civil Division): Mance LJ refused a renewed application for permission after an oral hearing. The present court refused Mr Boardman’s application to challenge that refusal.