Appeal — Reopening of appeal — Jurisdiction of High Court
Queen’s Bench Division, Administrative Court, Munby J, 4 Feb 2009
Nigel Vaughan (of Powys County Council) for the authority. Gerard Heap (instructed by Lloyd Williams) for B.
'Judicial opinions could often differ on questions of construction'
On 14 May 2005, the appellant purported to serve a noise abatement notice on the appellant under s 80 of the Environmental Protection Act 1990 (EPA 1990), by leaving it with a covering letter in the post box at the shooting ground he ran. It did not come to the appellant’s attention until 16 April.
On 6 May, the appellant appealed to the magistrates’ court against the notice. It was common ground that the notice of appeal was out of time if the notice had been validly served on 14 April, since the statutory time for appeal was 21 days and there was no power to extend time. If the notice was only validly served on 16 April, then time expired on 6 May and the appeal was within time. Th e justices ruled that the notice had been validly served on 14 May, and therefore dismissed the appeal. The appellant appealed by way of case stated.
In March 2007, the High Court found in his favour and remitted the case to the justices; however, in November 2007, the authority successfully appealed to the Court of Appeal. Subsequently, it came to the attention of the Court of Appeal that it had no jurisdiction to hear the appeal, due to ss 18(1) and 28A of the Supreme Court Act 1981. Accordingly, it set aside its order. Th e authority thereafter applied to the High Court seeking an order for permission to re-open the March 2007 High Court decision pursuant to CPR 52.17.
Munby J:
The authority approached the application on the assumption that the March 2007 decision had been shown to be “wrong”, with the consequence that the authority and the justices were bound by a decision of the High Court which was erroneous in point of law.
The appellant asserted that the Court of Appeal had given no decision and that its views, albeit expressed publicly, should carry no more weight than if they had been expressed privately and extra-judicially.
His lordship ruled that on that centrally important point the appellant was correct.
Given that the Court of Appeal had (as it itself subsequently acknowledged) no jurisdiction to hear any appeal from the March 2007 order, it followed that, first, the only jurisdiction that the Court of Appeal had was the question as to whether or not it had jurisdiction.
Had that question been addressed, the Court of Appeal would inevitably have decided that it lacked jurisdiction.
In those circumstances, the moment the Court of Appeal purported to embark upon the substantive hearing of the appeal, the matter was coram non judice. In the strict view of the law, the matter was not an appeal, it was not proceeding in the Court of Appeal and it was not proceeding before anybody who was acting as a lord justice or indeed as any kind of judge.
Neither of the judgments delivered on that occasion nor the order made on that occasion could give rise to any res judicata, issue estoppel or any other kind of estoppel binding on either of the parties. On the contrary, so long as the March 2007 order stood, it was that order and that judgment which were res judicata as between the parties.
If and insofar as the “judgment” of the Court of Appeal purported to lay down any principle of law, it had no binding validity as legal precedent. It was merely the considered view of someone who was a Lord Justice of Appeal.
That view was consistent with Aire Property Trust v Treeweek [1989] 1 EGLR 61, Gardi v Secretary of State for the Home Department [2002] All ER (D) 306 (Oct), Farley v Secretary of State for Work and Pensions [2005] EWCA Civ 778 and Uddin (a child) (serious injury: standard of proof), Re [2005] All ER (D) 385 (Feb).
It followed that the local authority was not entitled to approach the application on the basis that the March 2007 High Court decision was “wrong”. His lordship could not simply ignore what the Court of Appeal said. Indeed he had to “take account” of its reasoning. But that was as high as it went.
Division
In the first place, the issue which divided the High Court and Court of Appeal was, in the final analysis, a question of construction arising on a letter written by a layman. Judicial opinions could often diff er on questions of construction, particularly where the question arose on a homemade document.
Second, and with great respect to the Court of Appeal, his lordship was far from persuaded that its construction of the letter was either obviously right or even more probably right than the view which commended itself to the High Court.
In these circumstances, the authority failed to meet the criteria referred to in CPR 52.17(1).
There were further reasons why the local authority’s application should be rejected.
In the first place, his lordship was not persuaded that the injustice would be so grave as to overbear the claim of finality in litigation. Second, the matter had been fully and properly argued before the High Court and, were the appeal to be re-heard, then precisely the same material would be before the court and the same arguments would be advanced as previously.
Third, since the decision turned entirely on the construction of a homemade document, there was not going to be the damage to public confidence in the administration of justice if the matter ended at the present point.
The application would be dismissed.
