Farley v Child Support Agency

A decision of the High Court under section 28A of the Supreme Court Act 1981 on an appeal by way of case stated from magistrates is final. The Court of Appeal therefore has no civil appellate jurisdiction over it. General jurisdiction and second-appeal provisions cannot create a right excluded by statutory finality provisions. Earlier consolidation-era authority cannot be extended where the statutory scheme has materially changed. In exceptional circumstances, the Court of Appeal may use its judicial-review jurisdiction and rule 52.17 of the Civil Procedure Rules 1998 to reopen and set aside an order made without jurisdiction where there is no alternative effective remedy.

North Somerset Magistrates' Court made a child-support liability order against Mr Farley under section 33 of the Child Support Act 1991. Keith J dismissed his appeal by way of case stated on 12 July 2004. The Court of Appeal subsequently allowed a further appeal and ordered that the liability order be set aside, but the parties later recognised that sections 18 and 28A(4) of the Supreme Court Act 1981 might have made the High Court decision final. The central issues were whether the earlier Court of Appeal decision had been made without jurisdiction and whether an exceptional procedural route could preserve its practical effect.

Lord Woolf CJ gave the leading judgment, with Lord Phillips MR concurring.

1. Jurisdiction. The earlier Court of Appeal order had been made without jurisdiction. Section 28A(4) of the Supreme Court Act 1981 made the High Court's decision on the case stated appeal final. Section 18(1)(c) consequently barred an appeal to the Court of Appeal, notwithstanding the general jurisdiction conferred by sections 15 and 16.
2. The decision in Horseferry Road Justices v The Lord Mayor and the Citizens of the City of Westminster [2003] EWCA Civ 1007, also reported at [2004] 1 WLR 195, was correct and was not given per incuriam. The provisions introduced by the Access to Justice Act 1999 and the Destination of Appeals Order 2000 regulated existing rights of appeal and their destination. They did not create a right of appeal where sections 18 and 28A(4) excluded one.
3. The court declined to extend Leyton Urban District Council v Wilkinson [1927] 1 KB 853. That decision depended on the statutory structure then in force. Subsequent amendments, including section 7 of the Courts and Legal Services Act 1990, meant that the present legislation could not be read in the same way merely because a legislative paper trail remained.
4. Ordinarily, the proposed procedure would constitute an abuse of process. These circumstances were exceptional. Following the approach described in Chief Adjudication Officer v Foster [1991] 3 All ER, the court could treat the promised judicial-review application as made, waive formal requirements, grant permission at first instance, refuse the substantive application, and then hear an appeal and issue a declaration in the terms of the earlier merits decision.
5. Rule 52.17 of the Civil Procedure Rules 1998 permitted the earlier appeal to be reopened because the circumstances were exceptional and there was no alternative effective remedy. The earlier order was therefore set aside, while the procedural route preserved a declaration in Mr Farley's favour. The formal order was: application granted with costs; leave to appeal refused.

1. Court of Appeal (Civil Division), [2005] EWCA Civ 869: held that the earlier appeal had been heard without jurisdiction, reopened and set aside the earlier order, and used an exceptional judicial-review procedure to issue a declaration in the terms of the earlier merits decision.
2. Court of Appeal (Civil Division), 25 January 2005: allowed Mr Farley's appeal, set aside the liability order and remitted the Secretary of State's application for further adjudication. That order was later recognised as having been made without jurisdiction.
3. High Court of Justice, Queen's Bench Division, 12 July 2004: Keith J dismissed Mr Farley's appeal by way of case stated.
4. North Somerset Magistrates' Court, 4 December 2003: made a liability order for child support maintenance.