Horseferry Road Justices & Ors v City of Westminster

A High Court decision on a non-criminal appeal by way of case stated from a magistrates’ court is final under section 28A(4) of the Supreme Court Act 1981. Section 18 therefore excludes any appeal to the Court of Appeal, including an appeal confined to a point of law.

Sections 54 and 55 of the Access to Justice Act 1999 regulate permission for existing rights of appeal. They do not create a right of appeal where statute declares the High Court’s decision final. Nor does an order prescribing the destination of second appeals create such a right.

Horseferry Road Justices granted the holders of licensed premises a special hours certificate covering an area without a music and dancing licence. On Westminster City Council’s appeal by case stated, Mackay J held on 28 February 2003 that section 77A of the Licensing Act 1964 did not permit that grant. He gave permission to appeal and stayed his order.

The licensees and justices purported to appeal. The Civil Appeals Office raised whether the Court of Appeal had jurisdiction, because section 28A(4) of the Supreme Court Act 1981 declared the High Court’s decision final. The Court consequently determined the jurisdictional issue without deciding the proper construction of the licensing provision.

1. Jurisdiction declined. Auld LJ, with whom Clarke LJ and the Lord Chief Justice agreed, held that section 28A(4) of the Supreme Court Act 1981 made the High Court’s decision on the non-criminal case stated final. Section 18 of that Act accordingly prohibited an appeal to the Court of Appeal. The prohibition covered appeals on points of law as well as challenges to findings of fact: paras 6–13.

2. Sections 54 and 55 of the Access to Justice Act 1999 did not create a right of appeal. Section 54 subjected rights conferred elsewhere to a permission requirement. Section 55 imposed additional criteria upon a second appeal where an appeal right otherwise existed. Article 5 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000 prescribed the court to which an existing second appeal should go; it did not supply a missing right of appeal: paras 9–10.

3. Maile v Manchester City Council was binding authority that sections 28A(4) and 18 absolutely prohibited such an appeal. The House of Lords had adopted the same approach to the predecessor of section 18 in In Re Racal Communications Ltd [1981] AC 374. The earlier exercise of apparent jurisdiction in Westminster City Council v Mendoza did not assist because the statutory obstacle had not been brought to that court’s attention: paras 11–14.

4. The Lord Chief Justice added that the justices could properly hear the licensees’ fresh application, while taking Mackay J’s decision into account so far as relevant. Any later application for judicial review, and any contention that it constituted an abuse of process, would be for the judge dealing with that application. Relevant considerations could include both the statutory finality of Mackay J’s decision and his view that appellate consideration was desirable: paras 18–21.

5. No order was made on the purported appeal, although the respondent was awarded its costs. Drawing up the order was postponed for 28 days to give the licensees an opportunity to seek protection through judicial review: paras 22–24.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 1007, unanimously declined jurisdiction because the High Court’s decision was statutorily final. No order was made, the respondent received its costs, and drawing up the order was deferred for 28 days.

2. High Court, Administrative Court: On 28 February 2003, Mackay J allowed Westminster City Council’s appeal by case stated. He held that section 77A of the Licensing Act 1964 did not permit a special hours certificate for an area lacking a music and dancing licence. He granted permission to appeal and stayed his order.

3. Horseferry Road Justices: The justices had granted the special hours certificate and stated a case under section 111 of the Magistrates’ Courts Act 1980.