Mr Justice Munby :
1. This is an unusual application. Made pursuant to CPR 52.17, it comes before the
The factual background
2. Mr John Butland runs a clay target shooting business at Woodland Park Shooting Ground, Talachddu, Brecon (“the shooting ground”). For some time he has been in controversy with the local authority, Powys County Council, which is concerned about the noise generated by the shooting.
3. On 12 September 2003 the local authority served a Noise Abatement Notice pursuant to section 80 of the Environmental Protection Act 1990. This Notice, which in the event the local authority never sought to enforce, was served on Mr Butland at the shooting ground, seemingly without demur.
4. On 17 January 2005 Mr Butland wrote a letter to the local authority inviting it to lift the Notice. The letter concluded as follows: “Please use the address at the head of this letter for all future correspondence with me.” That address was the address of the shooting ground.
5. On 14 April 2005 the local authority served a second Noise Abatement Notice under section 80 of the 1990 Act, by leaving it, with a covering letter, in the post-box at the shooting ground. It did not come to Mr Butland’s attention until 16 April 2005.
6. On 6 May 2005 Mr Butland lodged a notice of appeal in respect of the Noise Abatement Notice by way of a complaint to the Welshpool Magistrates’ Court.
The original issue
7. It is correctly common ground that Mr Butland’s notice of appeal was out of time if the Noise Abatement Notice was properly served on 14 April 2005. The statutory time for lodging an appeal is 21 days and there is no power to extend time. If the Noise Abatement Notice was properly served on 14 April 2005, then time expired on 4 May 2005, so the appeal was out of time. If it was served on 16 April, then time expired on 6 May 2005 and the appeal was in time.
8. The local authority has always asserted that the Noise Abatement Notice was properly served on 14 April 2005. It relies upon section 160 of the Environmental Protection Act 1990, which so far as material provides as follows:
“(2) Any such notice required or authorised to be served on or given to a person other than an inspector may be served or given by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.
…
(4) For the purposes of this section and of section 7 of the Interpretation Act 1978 (service of documents by post) in its application to this section, the proper address of any person on or to whom any such notice is to be served or given shall be his last known address …
(5) If the person to be served with or given any such notice has specified an address in the United Kingdom other than his proper address within the meaning of subsection (4) above as the one at which he or someone on his behalf will accept notices of the same description as that notice, that address shall also be treated for the purposes of this section and section 7 of the Interpretation Act 1978 as his proper address.”
9. In these circumstances the first issue for the Justices was whether Mr Butland’s appeal was in time. And that, as we have seen, had resolved itself into the question of whether Mr Butland had by his letter dated 17 January 2005, and more particularly by his direction that “all future correspondence” should be sent to the shooting ground, “specified” that address as the one at which he would accept notices given by the local authority.
The proceedings
10. Mr Butland’s appeal came on for hearing before the Welshpool Magistrates’ Court on 18 January 2006. The Justices accepted the local authority’s submissions. They held that the Noise Abatement Notice had been served on 14 April 2005, that the appeal was therefore out of time and that they accordingly had no jurisdiction to hear the appeal.
11. On 17 March 2006 the Justices stated a Case, identifying the question for the High Court as being: “Did the alternate address given by [Mr Butland] become the proper legal address for the service of the Noise Abatement Notice?”
12. Mr Butland’s appeal by way of Case Stated came on for hearing before McCombe J in the
“Each case has to be looked at in its circumstances. Here was a case where Mr Butland was writing, in quite sensible business terms, as one accepts, but the situation was obviously much more serious when the council wished to serve a formal statutory notice, noncompliance with which could have criminal sanctions. It seems to me that the enquiry that is suggested is not one that required a great exercise of effort on the council’s part to make. I am not suggesting, for a minute, that the council failed to make proper effort in the case. They simply, as I have held, wrongly construed that this letter as engaging subsection (5). In my view it does not, and for those reasons this appeal is allowed.”
13. The local authority obtained permission to appeal to the Court of Appeal. The appeal came on for hearing before Latham, Dyson and Jacob LJJ on 15 November 2007. Latham LJ gave a judgment with which Dyson and Jacob LJJ agreed. The Court of Appeal found for the local authority and allowed the appeal: Butland v
“[11] … I am firmly of the view that [the local authority’s] submissions are correct. It seems to me that, looking at the whole story, leaving for the moment the word “context” to one side, the whole story starts with an abatement notice which was served without demur at Woodland Park, and that is the background against which the council were entitled to consider the proper meaning to be given to the letter of 17 January 2005. They were, in my view, fully entitled to take the view that Mr Butland was indicating clearly that matters relating to noise issues, arising out of the activities of the shooting ground, were to be dealt with through
[12] That was, in my view, sufficient to entitle the council to conclude that, by virtue of section 160(5), that was the proper address for the service of this abatement notice.”
14. The order giving effect to that decision was sealed the same day, 15 November 2007.
15. Subsequently it came to the attention of the Court of Appeal that it had had no jurisdiction to hear the appeal: see sections 18(1) and 28A of the Supreme Court Act 1981 and Westminster City Council v O’Reilly [2003] EWCA Civ 1007, [2004] 1 WLR 195. Accordingly, on 19 December 2007 the Court of Appeal made a further order that its order dated 15 November 2007 “be set aside.”
The application
16. It was in these circumstances that on 30 April 2008 the local authority issued the application which is now before the
17. I should refer at this point to CPR 52.17, which provides as follows:
“(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.
(2) In paragraphs (1), (3), (4) and (6), “appeal” includes an application for permission to appeal.
(3) This rule does not apply to appeals to a county court.
(4) Permission is needed to make an application under this rule to reopen a final determination of an appeal even in cases where under rule 52.3(1) permission was not needed for the original appeal.
(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.
(6) The judge will not grant permission without directing the application to be served on the other party to the original appeal and giving him an opportunity to make representations.
(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.
(8) The procedure for making an application for permission is set out in the practice direction.”
18. CPR 52.17 reflects the reasoning and approach in
19. The relevant part of the Practice Direction is in the following terms:
“25.1 This paragraph applies to applications under rule 52.17 for permission to reopen a final determination of an appeal.
25.2 In this paragraph, “appeal” includes an application for permission to appeal.
25.3 Permission must be sought from the court whose decision the applicant wishes to reopen.
25.4 The application for permission must be made by application notice and supported by written evidence, verified by a statement of truth.
25.5 A copy of the application for permission must not be served on any other party to the original appeal unless the court so directs.
25.6 Where the court directs that the application for permission is to be served on another party, that party may within 14 days of the service on him of the copy of the application file and serve a written statement either supporting or opposing the application.
25.7 The application for permission, and any written statements supporting or opposing it, will be considered on paper by a single judge, and will be allowed to proceed only if the judge so directs.”
20. The local authority’s application was initially considered on the papers by His Honour Judge
21. Mr Butland’s representations, settled by counsel, Mr Gerard Heap, who had appeared for him before both McCombe J and the Court of Appeal, are dated 19 August 2008. Unsurprisingly, Mr Butland resists the local authority’s application.
The application: the issue
22. The issue which I have to decide, in accordance with CPR 52.17, is whether the local authority should have permission to re-open the appeal as concluded against it by McCombe J.
The application: the law
23. As we have seen, CPR 52.17(1) provides that the court “will not” re-open an appeal unless:
“(a) it is necessary to do so in order to avoid real injustice; (b) the circumstances are exceptional and make it appropriate to reopen the appeal; and (c) there is no alternative effective remedy.”
This indicates, and the Court of Appeal has consistently reiterated (see below), what a high threshold has to be met. Moreover, it is to be noted that the concluding words of paragraph (b) show that the court retains a residual discretion not to make an order even if all the other conditions are satisfied. This, again, reflects
24. In Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, it was said (at para [54]) that the jurisdiction could be exercised only to avoid “real injustice in exceptional circumstances” and (at para [55]) that if the jurisdiction was to be exercised “it should be clearly established that a significant injustice has probably occurred and that there is no alternative effective remedy.” What Brooke LJ called “this extremely tough requirement” was reiterated in Seray-Wurie v Hackney
25. Those decisions both preceded the introduction of CPR 52.17, but the same principle has been repeated since by the Court of Appeal in In re Uddin (A Child) [2005] EWCA Civ 52, [2005] 1 WLR 2398, at paras [15]-[16], and again in London Borough of Richmond Upon Thames v Secretary of State for Transport [2006] EWCA Civ 193 at para [57] and in Feakins v The Department for Environment, Food and Rural Affairs [2006] EWCA Civ 699 at para [10].
26. In In re Uddin (A Child) [2005] EWCA Civ 52, [2005] 1 WLR 2398, the Court of Appeal said (at para [21]) that “the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claims of finality in litigation – especially pressing where what is contemplated is a second appeal.” It went on (para [22]) to say that it is not enough to demonstrate “a real possibility that an erroneous result was arrived at in the earlier proceedings”; what must be demonstrated is “a powerful probability that such a result has in fact been perpetrated” (emphasis in original), adding that “[t]hat … is a necessary but by no means a sufficient condition for a successful application under CPR 52.17(1)”. That was all reiterated in Feakins v The Department for Environment, Food and Rural Affairs [2006] EWCA Civ 699 at para [12], a case where the jurisdiction under CPR 52.17(1) was exercised because it was (see at para [38]) “highly likely” that a different decision would be arrived at.
27. So much for the law, I turn to the opposing contentions.
The application: the local authority’s case
28. The local authority’s case, in relation to which I am told it has consulted leading counsel, can be summarised as follows:
i) McCombe J’s decision has been held by a unanimous Court of Appeal, following full argument, to be wrong in law. So the setting aside by the Court of Appeal of its order (for lack of jurisdiction) leaves the local authority (and the Justices) bound by a decision of the High Court which is erroneous in point of law.
ii) Unless remedied the circumstances will give rise to “real injustice”. Since the Court of Appeal’s unanimous view was that McCombe J’s decision was wrong, the present case is not one in which the applicant is seeking to reopen a judgment on the basis that it might have been, or even probably was in error; a superior court has, with one voice, confirmed that the decision actually was wrong.
iii) The circumstances are “quite clearly exceptional” – indeed, it is said, “extraordinary” – inasmuch as they involve both parties and an appellate court overlooking an absolute jurisdictional bar until after judgment had been given. Given the nature of the adversarial system, where a victorious party has a clear vested interest in resisting any appeal, such an oversight will by its very nature be exceptional. Moreover, to permit reopening in such a case necessarily involves, so it is said, only the “most limited infringement” upon the finality of proceedings.
iv) The only remedy open to the local authority is to apply to the High Court to re-open its decision and for the High Court to re-open the decision and “take account” of the reasoning of the Court of Appeal. There is no other way of averting the injustice to which the applicant will otherwise be subject. There is no possibility of appeal, as the Court of Appeal has now made clear beyond peradventure. And, CPR 52.17 apart, there is no other basis upon which McCombe J’s decision can be reopened, as would be possible in the case of fraud, for example by bringing a fresh action.
v) Unlike a case where an applicant is seeking to adduce fresh evidence or advance new arguments, the present case is not one in which the injustice can be said to have been caused or contributed to by any lack of diligence on the part of the applicant; the same evidence and substantially the same arguments were deployed both before McCombe J and the Court of Appeal.
vi) Although the case only reached the Court of Appeal as the result of a procedural oversight on the part of all concerned, that step having been taken the proper response cannot simply be to ignore the Court of Appeal’s decision, even if, as a matter of procedure, it must be set aside. The jurisdiction under CPR 52.17 exists to protect the Court’s position as a court of justice, and it would seriously undermine confidence in the administration of justice if a decision which had been (albeit erroneously) brought before a superior court and specifically found to be in error were now permitted to bind the parties without first being subject to further re-examination.
The application: Mr Butland’s case
29. Mr Heap, on behalf of Mr Butland, resists the local authority’s application on two grounds: first, that there was what he calls inordinate delay on the part of the applicant in making the application; secondly, that the proposed application enjoys no realistic prospect of success.
30. I shall deal with the latter submission first. It is elaborated as follows.
31. In the first place, Mr Heap says that there are no exceptional circumstances which would justify re-opening the appeal. He accepts that the case is unusual, though not unique (referring in this context to the Farley litigation: see below); but that is not, he submits, to say that it is exceptional. This was not a decision made in ignorance of any material fact. All the available material was put before McCombe J, and the parties were free to advance such arguments as they saw fit. Were the appeal to be re-heard, then precisely the same material would be before the court and the same arguments would be advanced. The only new circumstance is that the Court of Appeal, without having any jurisdiction to do so, expressed a view different from McCombe J’s. Properly analysed, he says, the applicant is saying no more than that, with the benefit of hindsight, McCombe J might have made a different decision; but no decision is ever made with the benefit of this kind of hindsight, and a decision which, in law, was final at the time it was made must remain final if it was not made in ignorance of any material fact.
32. Secondly, Mr Heap submits that to re-open the appeal would be directly contrary to the principle that it is in the public interest that there should be finality to litigation: interest rei publicae ut finis sit litis. McCombe J’s decision was, in law, final and it should remain final. The fact that the Court of Appeal made a decision which was a nullity should not cause McCombe J to change his mind. It is unfortunate, he says, that the views of the Court of Appeal were expressed publicly, but – and this is a crucial point – those views should carry no more weight than if, for instance, a number of Lords Justices had told McCombe J privately after he had made his decision that they would have determined the appeal before him differently. Moreover, Mr Heap postulates circumstances in which, the Court of Appeal’s lack of jurisdiction having passed completely unnoticed, a further appeal had been successfully taken to the House of Lords by Mr Butland who there succeeded in having McCombe J’s order reinstated. Leaving on one side the improbability that permission to appeal to the House of Lords would ever have been granted on the only issue which was before McCombe J, and passing over the almost indecent suggestion that the demi-gods could ever fall into the error of hearing an appeal without jurisdiction (both of which, I have to say, render his postulated scenario more fanciful than real), Mr Heap relies on this as showing that there is really no sensible reason why the Court of Appeal’s view should be treated as determinative. As he puts it, if the local authority is to be permitted to argue that McCombe J’s decision is not final (which, he says, is what its application effectively amounts to), then why should Mr Butland be required to accept that the Court of Appeal’s views should be regarded as final – a situation, he says, that would clearly be contrary to the principle that there should be finality in litigation. The fact is that Parliament has decreed that McCombe J’s decision is, in principle, final.
33. Thirdly, Mr Heap submits that no harm would be done to public confidence in the administration of justice were McCombe J’s order to stand. The fact is, he says, and he analyses Latham LJ’s judgment in some detail in this connection, that the ultimate decision of the Court of Appeal was based upon the particular facts of the case – not merely the terms of the letter of 17 January 2005 but also, and lying at the very heart of Latham LJ’s analysis (see para [11]), the circumstances in which the earlier Noise Abatement Notice had been served on 12 September 2003. So, he says, the case sets no precedent concerning the proper interpretation of section 160 of the 1990 Act. For good measure he adds that, at least arguably, the Court of Appeal was in error in its reliance upon the events of September 2003 because, he says, it went beyond the Justices’ factual findings and, in any event failed to examine those events in sufficient depth (the point being, he asserts, that the “service” on 12 September 2003 took place at a pre-arranged meeting, and is thus to be distinguished from the “service” of the later Noise Abatement Notice on 14 April 2005 being relied upon by the local authority). So, he says, it is at least arguable that the Court of Appeal was wrong. So it would be wholly unjust that Mr Butland should not have the opportunity to challenge its decision by way of a further appeal – which, of course, is not open to him.
34. For all these reasons, Mr Heap submits that the local authority’s proposed application in fact enjoys no realistic prospect if success. Finally, and in any event, however, he submits that the sense of injustice that Mr Butland would feel were the appeal to be re-opened would be at least as significant if not indeed more significant than any injustice the local authority claims to feel.
35. For good measure, as we have seen, Mr Heap submits that the application should in any event be dismissed because of the local authority’s delay. As he points out, over four months elapsed between the Court of Appeal’s order of 19 December 2007 and the issue of the application on 30 April 2008 – a period of delay which he characterises as inordinate and unacceptable. Accepting that there is no time limit specified in CPR 52.17, he submits that the court should take into account the period of three months within which appeals by way of Case Stated must be brought before the
The application: discussion
36. Before getting to the heart of the case, as I see it, it may be helpful to clear the ground. In the first place, I am not persuaded that the delay of which Mr Heap justifiably complains is, either of itself or when taken in conjunction with other relevant matters, such as to warrant dismissing the local authority’s application on that ground alone. I do not want to be misunderstood. Any application under CPR 52.17 must be made promptly, indeed, it might be thought, at the earliest practicable moment after the possibility of doing so has been identified. And those who delay unduly may well find their application being dismissed on that ground alone. Moreover, the local authority was here, in my assessment, rather slow off the mark and it cannot simply shelter behind the fact that it was seeking counsel’s advice if it is not prepared to be more forthcoming about the chronology than it has been. All that said, however, the degree of delay in this case, which has to be assessed in the light of the overall litigation history, is not, in my judgment, such as to deny the local authority access to the judgment seat on that ground alone. The application stands or falls on the other matters canvassed by Mr Heap.
37. Secondly, I am disinclined to embark upon a semantic debate as to whether the circumstances here were, as Mr Heap would have it, merely unusual, though not exceptional, or, as Mr Vaughan would have it, not merely exceptional but indeed extraordinary. The question is whether they were “exceptional” (CPR 52.17(1)(b)). In my judgment they were. The present case is, unhappily, not unique in the fact that the Court of Appeal acted without jurisdiction (see below) but it is, nonetheless, in my judgment exceptional that it did. Normally, and as a general rule, the Court of Appeal acts within its jurisdiction; only exceptionally does it act without jurisdiction.
38. Thirdly, it is clear that there is no alternative effective remedy (CPR 52.17(1)(c)). There is no appeal. And no-one has suggested or could suggest that a fresh action would lie to set aside McCombe J’s decision and order, for the proceedings before him were untainted with any vitiating feature, let alone by any fraud (however that word is to be understood in this context). All that is said, all that could be said, is that McCombe J, while properly exercising his jurisdiction, erred in point of law in attaching to Mr Butland’s letter of 17 January 2005 the meaning he gave it.
39. It follows, in my judgment, that the real issues in this case are these: First, is it necessary to re-open the appeal in order to avoid real injustice (CPR 52.17(1)(a))? Secondly, is it appropriate to reopen the appeal (CPR 52.17(1)(b))? It is to those central issues that I now turn.
40. As suggested by, though not directly addressed in, the opposing submissions as I have summarised them, there is, as it seems to me, lurking behind the current dispute between the local authority and Mr Butland, a profound difference of view as to the status and force of the reasoned judgment delivered by Latham LJ. The local authority, as we have seen, approaches the present application on the assumption that McCombe J’s decision has been shown to be “wrong”, with the consequence that the local authority and the Justice are bound by a decision of the High Court which is erroneous in point of law. Its case is that a superior court has, with one voice, confirmed that the decision actually was wrong and that the proper response cannot simply be to ignore what it calls the Court of Appeal’s “decision”. Mr Heap challenges this assumption head on. He asserts that the Court of Appeal has 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.
41. In my judgment, on this centrally important point Mr Heap is correct.
42. Given that, as is common ground, the Court of Appeal had (as it has itself subsequently acknowledged) no jurisdiction to hear any appeal from McCombe J’s order, it follows in my judgment that:
i) The only jurisdiction that the Court of Appeal had on 15 November 2007, and the only matter that it could properly deal with on that occasion, was the question – overlooked by all concerned – as to whether it had jurisdiction.
ii) Had that question been addressed, the Court of Appeal would inevitably have decided that it lacked jurisdiction.
iii) In these circumstances, the moment the Court of Appeal purported to embark upon the substantive hearing of the appeal – in fact from the moment the Lords Justices entered the court-room – 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 in fact acting as a Lord Justice or indeed as any kind of judge. It was proceeding before three persons – the Right Honourable Sir David Latham, the Right Honourable Sir John Dyson and the Right Honourable Sir Robin Jacob – who no doubt believed that they were sitting there as, respectively, Latham LJ, Dyson LJ and Jacob LJ but who in fact were not.
iv) Neither the judgments delivered on that occasion nor the order made on that occasion can give rise to any res judicata, issue estoppel or any other kind of estoppel binding on either the local authority or Mr Butland. On the contrary, so long as McCombe J’s order stands, it is that order and his judgment which are res judicata as between the parties and which therefore entitle Mr Butland to require the Justices, in accordance with the terms of McCombe J’s order, now to “determine the appeal”.
v) If and insofar as the ‘judgment’ of Sir David Latham purports to lay down any principle of law, it has no binding validity as legal precedent. It is merely the considered view of someone who is a Lord Justice of Appeal, albeit, as must be emphasised, a view formed with (and I adopt the well-known words of Megarry J in Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9 at page 16) “the aid of the purifying ordeal of skilled argument on the specific facts of a contested case” by two persons who are members of the Bar. It is, moreover, a view shared by two others who are also Lords Justices. Therefore, in legal theory the ‘judgment’ delivered by Sir David Latham has no more weight or validity than it would have had if delivered at the end of a one hour moot at one of the Inns of Court conducted before the same ‘judges’ and by the same ‘counsel’. (I note from the order made on 15 November 2007 that the court [sic] sat from 10.30 to 11.39.) Such a ‘decision’ is, strictly speaking, not a judicial decision at all.
43. This, I stress, is the analysis I would have come to in the absence of authority. That it is indeed the correct legal analysis is, in my judgment, supported by such authority as has come to my attention.
44. Mr Heap, as we have seen, has referred to the Farley litigation. But there are at least two other reported instances in recent times which I have uncovered when ‘decisions’ of the Court of Appeal have been reported in circumstances where it lacked jurisdiction to hear the case at all. There may be more.
45. The first case is Aire Property Trust v Treeweek [1989] 1 EGLR 61, where the Court of Appeal embarked upon the hearing of an appeal which by virtue of section 77(6) of the County Courts Act 1984 it had no jurisdiction to entertain. Apparently (see at page 62) Kerr LJ discovered this only after having started to give judgment, for which reason, he explained, he would complete his judgment “de bene esse”. In its long established meaning (see (1946) 62 LQR 39 and, to much the same effect, the Oxford English Dictionary), de bene esse means ‘to allow or accept for the present till it comes to be more fully examined, and then to stand or fall according to the merit of the thing in its own nature’. More succinctly, as Burton J has explained (see In the case of AFP Berry [2002] EWHC 1718 (Admin) at [3] and R (on the application of Murray) v Hampshire CC (No.1) [2002] EWHC 1401 (Admin), [2003] JP L 224, at [3]), it means ‘under reserve’ or, as another modern authority puts it (see Gray, Lawyers’ Latin – A Vade Mecum, new ed 2006, at page 46) ‘provisionally’ or ‘for what it is worth’. Whatever the precise sense in which he was using the expression, Kerr LJ seems to have proceeded on the basis that nothing he was saying could be definitive or binding. I should perhaps mention that, commenting on this episode in A New Miscellany-At-Law at page 161, that very learned man the late Sir Robert Megarry suggested that “The pure theory of jurisdiction may demand an instant halt to the proceedings, and oblivion for all that has been said”, whilst adding “but at least when the judgment is in progress towards dismissing an appeal, pragmatism may encourage the judge to complete his unjurisdictional judgment, professedly de bene esse”.
46. The next case is Gardi v Secretary of State for the Home Department [2002] EWCA Civ 750, [2002] 1 WLR 2755, where the Court of Appeal delivered judgments (the main judgment being that of Keene LJ) allowing an appeal from the Immigration Appeal Tribunal which it was subsequently discovered it had had no jurisdiction to entertain (the Adjudicator had sat in Glasgow and appeal accordingly lay to the Court of Session). When this was discovered the Court of Appeal set aside its order as a nullity, Ward LJ observing that “we had no jurisdiction to entertain this appeal, and Keene LJ has wasted his learning on desert air”: Gardi v Secretary of State for the Home Department (No 2) (Note) [2002] EWCA Civ 1560, [2002] 1 WLR 3282, at para [6]. Subsequently a point dealt with obiter by Keene LJ in his judgment in Gardi v Secretary of State for the Home Department [2002] EWCA Civ 750, [2002] 1 WLR 2755, at para [37], arose in the Court of Session. The Lord Justice Clerk agreed with and adopted what Keene LJ had said, notwithstanding that, as he put it, the decision of the Court of Appeal had later been declared invalid for jurisdictional reasons: see Saber v The Secretary of State for the Home Department [2006] ScotCS 360 at para [32]. The same point arose subsequently in the
47. The third case is Farley v Secretary of State for Work and Pensions (No 1) [2005] EWCA Civ 778, [2005] 2 FLR 1059, where, as in the present case, the Court of Appeal (Lord Woolf CJ, Lord Phillips of Worth Matravers MR and Lord Slynn of Hadley) purported to hear an appeal from a decision which a judge in the Administrative Court (Keith J) had made on an appeal by way of Case Stated from a decision of a Magistrates’ Court in a civil matter – in that case an application by the Secretary of State for a liability order under section 33 of the Child Support Act 1991: see Farley v Secretary of State for Work and Pensions [2004] EWHC 1655 (Admin), [2005] 1 FLR 1. Subsequently, it was accepted, in the light of Westminster City Council v O’Reilly [2003] EWCA Civ 1007, [2004] 1 WLR 195, that the Court of Appeal had lacked jurisdiction to hear the appeal and that its judgment and order had been made without jurisdiction: see Farley v Secretary of State for Work and Pensions (No 2) [2005] EWCA Civ 869, [2005] 2 FLR 1075, at paras [14] and [20] (reversed on other grounds [2006] UKHL 31, [2006] 1 WLR 1817). The Court of Appeal was able to escape from the difficulty by transforming the defective appellate proceedings into proceedings for judicial review: see [2005] 2 FLR 1075 at paras [14]-[17]. Lord Phillips of Worth Matravers MR indicated (at para [22]) that in adopting this course the Court of Appeal was exercising its powers under CPR 52.17. Lord Woolf CJ (see at para [17]) seems to have taken the same view. Of importance for present purposes is Lord Woolf CJ’s observation at para [17] that, given the course being adopted by the Court of Appeal, “There will then no longer be a judgment of this court which causes confusion to those who are involved in practice in this area because of its uncertain status due to the lack of jurisdiction to which I have made reference.” And in similar vein Lord Phillips of Worth Matravers MR referred (at para [21]) to the fact that “If our decision were simply quashed on the ground that it was made without jurisdiction, it would nonetheless be calculated to give rise to considerable confusion.”
48. I conclude, therefore, with all respect to Sir David Latham, that the ‘judgment’ he delivered on 15 November 2007 cannot give rise to any res judicata, issue estoppel or any other kind of estoppel binding on either the local authority or Mr Butland; that if and insofar as that ‘judgment’ purports to lay down any principle of law, it has no binding validity as legal precedent; and that it is merely the considered view of someone who is a Lord Justice of Appeal but was not acting as such when he expressed it.
49. It follows, in my judgment, that the local authority is not entitled to approach the present application, as it would wish, on the basis that McCombe J’s decision was “wrong”, merely because the Court of Appeal has said so (it has not). McCombe J may have been wrong; but I cannot approach the case on the basis, as the local authority would have it, that the ‘decision’ of the Court of Appeal demonstrates that his decision actually was wrong. I accept, as Mr Vaughan puts it, that the proper response cannot simply be to ignore what Sir David Latham said. Indeed, I must, as he correctly submits, “take account” of Sir David’s reasoning. But that, in my judgment, is as high as it goes.
50. I make the point for these reasons. In the first place, the issue which divided McCombe J and Sir David Latham was, in the final analysis, a question of construction arising on a letter written by a layman. Now as a matter of jurisprudential classification that may be a question of law, but it is a question of law of a very different type from (to take two examples at random) the ‘Rule in Shelley’s case’ or the principles established in the Wagon Mound litigation. Moreover, as is notorious, judicial opinions can often differ on questions of construction, particularly where the question arises on a homemade document.
51. Secondly, and with very great respect to Sir David Latham, I have to say that I am far from persuaded that his construction of the letter is either obviously right or even more probably right than the view which commended itself to McCombe J. If I were to give the local authority the permission it seeks, the matter would have to be considered afresh – as it seems to me by someone other than McCombe J. That judge would be faced with one view which commended itself to a judge of the High Court properly exercising jurisdiction and another which commended itself to a Lord Justice (with whom two other Lords Justices agreed) sitting extra-judicially. Placed in that unenviable position the judge, as it seems to me, would have to come to his own view, which might or might not be that which commended itself to Sir David Latham and his brethren.
52. Happily I am not the judge placed in that unenviable position, but faithful application of the principles referred to in paragraphs [24] and [26] above means that I cannot avoid having at least to consider the likely outcome of the hearing were I to allow the matter to proceed. I am, as I have said, far from persuaded that Sir David Latham’s view is either obviously right or even more probably right than the other view. There is, in my judgment, much to be said for the view which commended itself to McCombe J. I say that for two reasons. In the first place, I can see the force in the contention that in the context of the letter read as a whole the word “correspondence” is simply not apt to embrace some formal document such as a Noise Abatement Notice. Secondly, it is far from obvious to me that the word “correspondence”, whatever its meaning, was being used by reference to anything other than “correspondence” relating to the original Noise Abatement Notice. In other words I think that, read in the context of the letter as a whole, and bearing in mind that what had triggered the letter was the service of a Noise Abatement Notice on 12 September 2003, the phrase “all future correspondence with me” can plausibly be read as meaning “all future correspondence with me in relation to this [ie, the 12 September 2003] Notice”. Success on either point would suffice for Mr Butland’s purposes.
53. In these circumstances, the local authority, in my judgment, fails to meet the criteria referred to in CPR 52.17(1), whether one has regard to the test as formulated in Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, at para [55] (“clearly established that a significant injustice has probably occurred”) or to the test as formulated in In re Uddin (A Child) [2005] EWCA Civ 52, [2005] 1 WLR 2398, at para [22] (not enough to demonstrate “a real possibility that an erroneous result was arrived at in the earlier proceedings”; what must be demonstrated is “a powerful probability that such a result has in fact been perpetrated”). The local authority has simply failed to meet the “extremely tough requirement” referred to by Brooke LJ in Seray-Wurie v Hackney
54. There are in fact further reasons, in my judgment, why the local authority’s application should be rejected.
55. In the first place, I am simply not persuaded that, to adopt the words of the Court of Appeal in In re Uddin (A Child) [2005] EWCA Civ 52, [2005] 1 WLR 2398, at para [21], the “injustice that would be perpetrated if the appeal is not reopened” would be “so grave as to overbear the pressing claims of finality in litigation”, not least in a context where, as Mr Heap correctly emphasises, Parliament has decreed that McCombe J’s decision is, in principle, final. And in this connection there is, I think, force in Mr Heap’s point that the sense of injustice that Mr Butland would feel were the appeal to be re-opened would be at least as significant, if not indeed more significant, than any injustice the local authority claims to feel. Moreover, I am entitled to have regard to the nature of the injustice which the local authority will suffer if I refuse the application. At worst it will merely be denied the chance of blocking Mr Butland’s appeal to the Justices in limine. If I refuse its application, it will still be able to defend the appeal on the merits, and if the merits are on its side Mr Butland will no doubt lose his appeal.
56. Secondly, I think it not unimportant to have regard to the nature of the error in the process which has led to the local authority’s application. In In re Uddin (A Child) [2005] EWCA Civ 52, [2005] 1 WLR 2398, the Court of Appeal at paras [18]-[20] described as the paradigm, though not necessarily the only, case where the jurisdiction could be exercised, the case where it could be “demonstrated that the integrity of the earlier litigation process … has been critically undermined” or “where the process itself has been corrupted”. Neither applies in the present case. The matter was fully and properly argued before McCombe J and, as Mr Heap correctly points out, 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 before McCombe J. The only difference is that the judge would have the benefit of Sir David Latham’s views in addition to, albeit contrasting with, those of McCombe J.
57. Thirdly, since the decision turns entirely on the construction of a homemade document, there is not going to be the damage to public confidence in the administration of justice if the matter ends at this point which the local authority fears. On the contrary, I am inclined to think that in the circumstances of this particular case the greater damage to public confidence in the system would be occasioned by re-opening a decision which Parliament has said is to be final, not because of any defect in the process (for, to repeat, there was no defect in the process before McCombe J) but simply because the Court of Appeal has expressed a contrary view in an ‘appeal’ which it had no jurisdiction to hear and which, if the error had been spotted earlier, it would never in fact have heard.
Conclusion
58. For these reasons this application fails and is accordingly dismissed. Mr Butland’s substantive appeal must therefore be heard and determined by the Justices in accordance with McCombe J’s order.
59. Subject to any further submissions from the local authority it would seem to follow that the local authority should pay Mr Butland’s costs of the application.
Postscript
60. The judgment in the form in which it appears above was sent to the parties in draft on 10 December 2008. In addition to the usual rubric inviting the identification of any typing corrections or other obvious errors (in the event none were brought to my notice), I drew specific attention to certain paragraphs which included mention of authorities to which I had not been referred in the course of the parties’ written submissions. I invited them to indicate whether they wished to make any further submissions (in writing) in relation to those authorities. Perhaps unsurprisingly, Mr Butland was content. And on 2 February 2009 I was notified that the local authority, having taken advice from counsel, accepted my judgment and accepted also that it should pay Mr Butland’s costs.
61. I therefore now hand down judgment (without the need for attendance by the parties).
62. I should add that, despite the issues which arose, and despite the matter which I have referred to in paragraph [60], I saw no reason to depart from the principle in CPR 52.17(5) that applications of this kind are normally to be dealt with on paper and without an oral hearing. I was anxious to spare the parties unnecessary costs and it seemed to me that the best way of dealing with the application was to do so on paper but giving the parties the opportunity – in the event declined – to make further written submissions if they wished.
The order
63. The order, which will be dated 4 February 2009, will accordingly provide that (1) the local authority’s application dated 30 April 2008 is dismissed, (2) Mr Butland’s appeal to the Welshpool Magistrates’ Court dated 6 May 2005 is to be heard and determined by the Justices in accordance with the order of McCombe J dated 15 March 2007 and (3) the local authority is to pay Mr Butland’s costs of the application to be assessed if not agreed.
