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|Judgments - Ceredigion County Council (Respondents) v. Jones (FC) and others (FC) (Appellants)
from the Appellate Committee
23 MAY 2007
Ceredigion County Council (Respondents) v. Jones (FC) and others (FC) (Appellants)
ORDERED TO REPORT
The Committee (Lord Bingham of Cornhill, Lord Hoffmann, Lord Scott of Foscote, Lord Mance and Lord Neuberger of Abbotsbury) have met and considered the cause Ceredigion County Council (Respondents) v. Jones (FC) and others (FC) (Appellants). We have heard counsel on behalf of the appellants and respondents.
1. The following is the considered opinion of the Committee.
2. This appeal raises a novel problem on the procedure to be adopted on a leapfrog appeal to the House under sections 12 and 13 of the Administration of Justice Act 1969.
3. The underlying dispute between the parties may be very briefly described. The claimants in the proceedings are children who live in Ceredigion but have at all material times attended a Welsh-speaking school in Pembrokeshire. They travel to the school on a school bus provided by Pembrokeshire. Until 2003 Pembrokeshire provided this service without charge, but in about July 2003 policy changed and Pembrokeshire was only willing that Ceredigion children should travel on its bus if Ceredigion paid. Ceredigion was unwilling to do so but offered the children places at English or Welsh-speaking schools in Ceredigion, to which transport would be provided where necessary. The children and their parents did not wish to change schools. So the parents appealed to a non-statutory panel established by Ceredigion to rule on requests for free school transport. The panel decided that it was reasonable for the children to leave their school in Pembrokeshire and avail themselves of free transport available to a Welsh-speaking school in Ceredigion. Thus the panel upheld Ceredigion's decision not to pay for the Pembrokeshire bus.
4. The children (by their parents) applied for permission to seek an order quashing the panel decision. Hooper J granted leave and directed the parties to agree the facts and identify the issues for decision. This they did, identifying three such issues. The first issue was directed to the correct construction of sections 509 and 444 of the Education Act 1996. The second issue concerned the correct construction of section 444(4)(b)(iii) of the 1996 Act. The third issue may be ignored, since it plays no part in the history. To succeed in quashing the Ceredigion decision, the claimants had to succeed on both issues. Conversely, Ceredigion would defeat the application to quash if it succeeded on either. But (apart from a supporting declaration) the only relief sought by the claimants was a quashing order, and the issues related to the grounds relied on for doing so.
5. The application came before Collins J, who gave judgment in favour of the claimants on both issues and held that the decision should be quashed:  EWHC 1376 (Admin),  ELR 506. Following the delivery of judgment, counsel for Ceredigion asked for permission to appeal to the Court of Appeal, which the judge indicated he would grant. Counsel also applied for a certificate under section 12 of the 1969 Act to permit application to be made to the House of Lords for leave to appeal directly to the House.
6. Under section 12(1) the judge has a discretion to grant a certificate under the section if satisfied that three conditions are met. First, the judge must be satisfied under subsection (3), in relation to a decision of the judge in any proceedings, that a point of law of general public importance is involved in that decision and that that point of law meets the criteria specified in either (a) or (b) of subsection (3) of section 12. Paragraph (b) relates to cases where the judge is bound by a decision of a higher court, and was accepted in this case to be inapplicable. Paragraph (a) applies where the point of law in question "relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings". Collins J was satisfied that the conditions in subsection (3) and paragraph (a) were met.
7. Secondly, the judge must be satisfied under section 12(1)(b) that a sufficient case for an appeal to the House of Lords under Part II of the 1969 Act has been made out to justify an application for leave to bring such an appeal. Collins J was satisfied that this condition was met.
8. Thirdly, the judge must be satisfied under section 12(1)(c) that all parties to the proceedings consent to the grant of a certificate under this section. In this case, after some initial hesitation on the claimants' part, they did.
9. The judge accordingly ordered on 29 June 2004 (1) that the Ceredigion decision be quashed; (2) that a certificate be granted pursuant to section 12 of the 1969 Act; and (3) that "In the event that leave to appeal to the House of Lords is not granted, [Ceredigion] do have permission to appeal to the Court of Appeal". No criticism is made of the judge's order, which was wholly appropriate. Section 12(5) of the Act provides that no appeal shall lie against the grant or refusal of a certificate under the section: since the parties have to consent before a certificate is granted it is hard to see that an appeal could be mounted against a grant, but the judge's refusal of a certificate is intended to be final. There are some classes of case, specified in section 15, in which section 12 may not be invoked. One of these (in subsection (4)) is "where the decision of the judge, or any order made by him in pursuance of that decision, is made in the exercise of jurisdiction to punish for contempt of court".
10. Section 13 of the Act lays down certain procedural rules applicable where a certificate is granted under section 12. By subsection (1), at any time within one month from the date on which the certificate was granted, or such extended time as the House may allow, any of the parties to the proceedings may make an application to the House under section 13. Ceredigion timeously submitted a petition, seeking to reverse the conclusion of Collins J on each of the two issues which he had decided against it. Section 13(2), central to this appeal, provides:
Thus where leave is given, the only appeal will be to the House of Lords. Subsection (3) provides that applications under the section shall be determined without a hearing, a procedure which has become routine but was not so in 1969 when the Act was passed. The Judicial Office of the House invited the claimants to lodge objections to the grant of leave to appeal, indicating that in the absence of objections leave would probably be granted, and the claimants did lodge objections. Ceredigion's petition and these objections were considered by an appeal committee on 24 November 2004.
11. The Practice Directions and Standing Orders of the House applicable to civil appeals in force at the relevant time (since amended, although not in substance) provided in paragraph 4.6(b) that among the courses open to an appeal committee is to "decide that leave to appeal should be given on terms. In such cases the Committee will propose terms and the parties will be given two weeks to lodge observations thereon". The decision made by the appeal committee on 24 November 2004 as reported to the House and communicated to the parties addressed the two issues previously identified as the grounds on which Ceredigion sought to quash the order. On the first the decision was:"Permission to appeal on issue 1 is refused because the petition does not raise an arguable point of law of general public importance which ought to be considered by the House at this time, bearing in mind that the question at issue has been regarded as settled for very many years".
On the second issue the appeal committee ruled:
12. Availing itself of its right under paragraph 4.6(b) of the Practice Directions of the House, Ceredigion lodged observations on the terms to which the order of the appeal committee was subject, seeking leave to appeal on both issues with no costs condition. The appeal committee considered these observations but confirmed its order in the terms previously communicated.
13. Ceredigion then withdrew its petition to the House and, on 25 January 2005, gave notice of appeal to the Court of Appeal. In its grounds it made clear that its challenge was directed only to the judge's decision on the first issue, namely that on which the House had refused leave outright. The Court of Appeal decided to determine as preliminary issues (a) whether it had jurisdiction to hear the appeal, and (b) if so, whether Collins J's grant of permission to appeal to the Court of Appeal could be relied upon by Ceredigion in these circumstances. These issues were determined by the court (Waller and Maurice Kay LJJ and Sir Christopher Staughton) in the judgment giving rise to this appeal:  EWCA Civ 986,  1 WLR 3626.
14. On behalf of Ceredigion Mr Giffin QC contended that the Court of Appeal had jurisdiction to determine its appeal. The order made by the House in relation to the first issue should not deprive the authority of its right to challenge the judge's decision on an issue which he had given it leave to challenge in the Court of Appeal. This anomaly and injustice could be overcome by construing "decision" in section 13(2) as meaning not "judgment or order" but a decision on a particular issue. Reliance was placed on the reference to "decision" and "order" in section 15(4). Had the judge made separate declarations on the two issues, separate appeals would lie against each, and he should be treated as having done so. Thus the judge's order permitted an appeal relating to an issue which the House had not given leave to be argued there.
15. For the claimants Mr Nicol QC argued that by section 16(1) of the Supreme Court Act 1981 appeal lay to the Court of Appeal against any "judgment or order". The only judgment or order made by Collins J was the quashing order. An appeal lies against orders not reasons and "decision" was to be understood as referring to the judgment or order.
16. On the first question, a majority (Maurice Kay LJ and Sir Christopher Staughton) accepted Ceredigion's argument. Maurice Kay LJ was not persuaded that "decision" could only mean "judgment or order". He thought it wrong that a partial grant of leave should deny a party the right to argue another ground of appeal elsewhere, and was untroubled by the theoretical possibility that two appeals might be proceeding in two places at the same time. He construed "decision of the judge to which the certificate relates" in section 13(2)(a) as limited to a decision or part of a decision in respect of which the House of Lords has granted leave for an appeal. He concluded that the judge had granted leave on both issues. Sir Christopher Staughton substantially agreed. It was a possible reading of section 13(2) that an appeal should lie on some issues to the House of Lords and on others to the Court of Appeal, if so ordered. He saw little difference between a formal declaration on the one hand and a mere statement of the judge's conclusion on the other, at any rate in this context.
17. Waller LJ dissented on the jurisdiction question. He thought it a strange result if, as Mr Giffin was bound to accept, a party could continue to appeal on issue 2 in the House of Lords and at the same time pursue an appeal on issue 1 in the Court of Appeal. While the judge might have made separate declarations he had not in fact done so, and the House had not treated the judge as having made separate decisions and as having certified separately on each. The court could not construe "decision" as including simply "grounds" or "reasons". Section 13(2) was intended to preclude an appeal taking place at two levels at the same time, and by applying to the House Ceredigion was placing its fate in the hands of the House. Therefore the Court of Appeal had no jurisdiction but if, contrary to his view, it had, he agreed with the majority that the judge had granted leave to appeal.
18. In their written cases and in their oral argument the parties essentially repeated, with some elaboration, their submissions in the Court of Appeal. If obliged to choose between them, we would incline to accept the claimants' submissions, persuasively advanced by Mr Nicol, for very much the reasons given by Waller LJ, whose reasoning we find compelling. But discussion in the course of the hearing leads us to a different conclusion, for different reasons.
19. The purpose of the procedure introduced by sections 12 and 13, in cases where the judge finds the statutory conditions to be met and exercises his discretion to grant a certificate and where the House grants leave, is to save time and expense by cutting out an intermediate tier of appeal and providing that the matter in question is resolved in one forum only. It would stultify the procedure if different appeals against the same order were to proceed in parallel in different courts.
20. It is open to the House in response to an application for leave under section 13 to indicate that it will not receive argument on a particular point. The Court of Appeal accepted this, and neither party questioned it; it is an important management power, exercisable by a court asked to grant leave, to do so on terms that preclude argument on a point where the court considers that argument will be fruitless or irrelevant. Terms may also be imposed as to, for example, costs. The first of these powers is today exercised more often than in the past, but there is nothing novel about conditions as to costs. Given the wide terms of section 4 of the Appellate Jurisdiction Act 1876 (39 & 40 Vict c 59) and the authority of Attorney-General for Northern Ireland v Gallagher  AC 349, a term precluding argument on a specific point or points cannot be treated as irrevocable or incapable of revision, but written cases will be drafted and oral argument prepared in compliance with such a term, from which the appellate committee will ordinarily be unwilling to depart.
21. If, in the ordinary way, a prospective appellant is granted leave to appeal subject to terms which he is unwilling to accept, he has the option of declining to pursue his appeal. An applicant for leave under section 13 is in principle in no different position, save in one respect: that he has leave, probably (as here) subject to no conditions, to appeal to the Court of Appeal. That is an option of which the House cannot fairly deprive him if conditions proposed by the House are unacceptable to the prospective appellant. The expression "propose" in the Practice Directions in force at the relevant time, reproduced in the later editions, is significant, because it is inherent in a proposal that it may be either accepted or rejected.
22. In the present case, the language in which the appeal committee recorded its decision of 24 November 2004 unfortunately failed to make clear that the terms as to argument on the first issue and costs were proposals. Had the language been more explicit, Ceredigion might have been prompted to respond that if the appeal committee resolved to adhere to those conditions the authority would invite the appeal committee to refuse leave altogether, leaving it free to pursue an appeal on all points in the Court of Appeal. This would be the appropriate course to follow in such a situation. The appeal committee, if minded to adhere to the conditions, would doubtless accept the invitation to refuse leave. The imposition of conditions by the House could not fairly deprive the applicant of its full rights in the Court of Appeal.
23. Here, Ceredigion appreciated that the terms put forward were proposals, which it resisted, but it did not invite the appeal committee to refuse leave if minded to adhere to them. But it did withdraw its petition to the House, an unequivocal manifestation of its unwillingness to pursue its appeal on the terms put forward.
24. The order made by the appeal committee in this case may be interpreted as a conditional grant ("leave to appeal is granted, provided ") or a conditional refusal ("leave is refused, unless "). But it was not on any showing an unconditional grant of leave. In section 13(2) the words "leave is granted" must be understood to refer to an unconditional grant of leave or a grant of leave subject to conditions which are accepted or not unequivocally rejected. Only then does the applicant lose his right to proceed in the Court of Appeal.
25. In the present case Ceredigion rejected the option of appealing direct to the House on the only terms on which the House was willing to entertain an appeal against Collins J's order quashing the panel decision. It was then free to pursue a full appeal in the Court of Appeal. Thus that court had jurisdiction to hear an appeal against the judge's decision to quash the panel decision on the first ground relied on, and would have had jurisdiction, if asked, to review the judge's decision on the second ground also.
26. The committee is accordingly of opinion that this appeal must be dismissed. The case must be remitted to the Court of Appeal. Written submissions on costs are invited within 14 days.
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