Botham v Ministry of Defence

The grant of leave to appeal does not, without more, imply that the decision under challenge is wrong. Leave may reflect the grant of leave in an essentially identical case and the use of a leap-frog route. An appeal may be dismissed by consent while leave to appeal is granted. Costs may be ordered to follow the result of the further appeal, subject to the appropriate legal aid assessment.

This was an appeal to the Court of Appeal (Civil Division) from the Employment Appeal Tribunal. The appeal was dealt with by consent. The immediate issues were the disposal of the appeal and whether leave should be granted for a further appeal to the House of Lords.

1. Disposition of the appeal. The Court of Appeal dismissed the appeal by consent. The disposal did not involve determination of the substantive merits.
2. Leave to appeal. The court expressly stated that granting leave to appeal should not be understood as an inferential finding that the decision was wrong. The grant of leave reflected the fact that the House of Lords had itself granted leave in an essentially identical case. The court treated the route as an appropriate leap-frog remedy.
3. Costs. Costs were ordered to follow the result of the appeal to the House of Lords. The appellant’s costs remained subject to community legal services assessment.

1. Court of Appeal (Civil Division): appeal from the Employment Appeal Tribunal dismissed by consent; leave to appeal to the House of Lords granted.