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- LORD HALSBURY L.C. , LORD BRAMWELL , LORD HERSCHELL , LORD MACNAGHTEN , LORD FIELD AND LORD HANNEN.
- LORD HALSBURY L.C.: -
- LORDS, I AM OF OPINION THAT THIS PRELIMINARY OBJECTION OUGHT TO PREVAIL. AN APPEAL IS NOT TO BE PRESUMED BUT MUST BE GIVEN. I DO NOT MEAN TO SAY THAT IT MUST BE GIVEN BY EXPRESS WORDS, BUT IT MUST BE GIVEN IN SOME FORM OR OTHER IN WHICH IT CAN BE SAID THAT IT IS AFFIRMATIVELY GIVEN AND NOT PRESUMED. IN THE PARTICULAR CASE NOW BEFORE YOUR LORDSHIPS THE APPEAL IS CERTAINLY NOT GIVEN IN EXPRESS WORDS. THE WORDS USED ARE “LEAVE OF THE COURT”; AND ALTHOUGH IT MAY BE THAT IN SOME SENSE THE LEAVE OF THE COURT, WHETHER IT IS GIVEN OR WITHHELD, BECOMES AN ORDER (THAT I WILL NOT STAY TO DISCUSS), THAT IS NOT THE ORDINARY MODE IN WHICH IT WOULD BE DESCRIBED. IT IS TO BE SOMETHING THAT IS DONE BY THE ORDER OF THE COURT. I CONFESS MYSELF I SHOULD HESITATE IF IT WAS ONLY TO TURN UPON THE QUESTION OF LANGUAGE, BECAUSE ALTHOUGH A THING MIGHT BE CALLED AN ORDER, OR MIGHT BE CALLED A JUDGMENT, OR MIGHT BE CALLED A RULE, OR MIGHT BE CALLED A DECREE, IT MIGHT WELL BE THAT NEVERTHELESS BY REASON OF THE CONTEXT IT WOULD COME WITHIN THE OBVIOUS MEANING AND PURPOSE OF THE STATUTE; SO THAT ALTHOUGH IT WAS NO ONE OF THOSE THINGS IN NAME IT MIGHT BE ONE OF THOSE THINGS IN SUBSTANCE, AND THEREFORE WOULD COME WITHIN THE GENERAL PROVISION THAT AN APPEAL SHOULD LIE.
- LORDS, IT SEEMS TO ME THAT THAT WOULD REDUCE THE PROVISION TO SUCH AN ABSURDITY THAT EVEN IF THE LANGUAGE WERE MORE CLEAR THAN IS CONTENDED ON THE OTHER SIDE ONE REALLY OUGHT TO GIVE IT A REASONABLE CONSTRUCTION.
- LORDS, I CONFESS THAT WHEN I LOOK BOTH AT THE SUBJECT-MATTER WITH WHICH THE ORDER DEALS AND AT THE LANGUAGE OF THE ORDER ITSELF IT SEEMS TO ME OBVIOUS THAT IT WAS INTENDED THAT THE DECISION SHOULD BE FINAL (WHETHER THAT IS SAID IN TERMS OR NOT SEEMS TO ME TO BE IMMATERIAL), UNLESS THE COURT OF APPEAL, THE BODY THERE PRESCRIBED, IN THE EXERCISE OF THAT JURISDICTION SHOULD GIVE LEAVE TO APPEAL. AS NO LEAVE HAS BEEN GIVEN IN THIS CASE, AND AS NO APPEAL CAN BE BROUGHT UNLESS LEAVE HAS BEEN GIVEN, I AM OF OPINION THAT THIS PRELIMINARY OBJECTION OUGHT TO PREVAIL, AND THAT THIS APPEAL SHOULD BE DISMISSED, AND I SO MOVE YOUR LORDSHIPS.
- LORD BRAMWELL: -
- LORDS, I HAVE HAD A DIFFICULTY OF THE KIND WHICH I WILL DESCRIBE. WHEN THE FIRST JUDICATURE ACT PASSED IT TOOK AWAY THE JURISDICTION OF THIS HOUSE, AND THEREFORE UNDER THAT ACT THERE COULD BE NO APPEAL FROM ANY ORDER MADE BY THE COURT OF APPEAL. IT CANNOT BE SAID THEREFORE THAT WHEN THAT ACT PASSED IT WAS THE INTENTION OF THE LEGISLATURE THAT SUCH AN APPEAL AS THIS SHOULD NOT TAKE PLACE, BECAUSE IN TRUTH IT WAS IMPOSSIBLE THAT IT COULD, THERE WAS NO APPELLATE TRIBUNAL FROM THE COURT OF APPEAL. THEN, WHEN THE NEXT ACT PASSED WHICH RESTORED THE JURISDICTION OF THIS HOUSE, IT ENACTED THAT EVERY ORDER AND JUDGMENT (I AM NOT THINKING OF THE PARTICULAR WORDS AT THIS MOMENT) MADE BY THE COURT OF APPEAL SHOULD BE APPEALABLE TO THIS HOUSE. WELL, IF THE REFUSAL OF THE COURT OF APPEAL TO PERMIT THE APPEAL WAS AN ORDER BY THEM THAT ORDER WOULD COME WITHIN THE VERY TERMS OF THE ACT OF 1876 WHICH RESTORED THE JURISDICTION OF THIS HOUSE. THEN IT MIGHT BE ARGUED, HERE YOU HAVE A CASE WITHIN THE VERY WORDS OF THE STATUTE OF 1876, THAT IS TO SAY AN ORDER. BUT ALL MY NOBLE AND LEARNED FRIENDS, I KNOW, THINK THAT THIS IS NOT SUCH AN ORDER - THAT IF YOU THINK FIT TO CALL IT AN ORDER, IF THE RIGHT NAME TO GIVE IT IS “AN ORDER,” AT ALL EVENTS IT IS NOT SUCH AN ORDER AS IT WAS INTENDED BY THE STATUTE OF 1876 SHOULD BE APPEALABLE. I THINK NO REASONABLE MAN COULD SET UP HIS OWN PARTICULAR DOUBT IN OPPOSITION TO THE OPINIONS OF FIVE PERSONS WHO ARE SO MUCH ENTITLED TO HIS RESPECT AS MY NOBLE AND LEARNED FRIENDS ARE; AND THEREFORE I CONCUR, I AM CONTENT TO CONCUR, THAT THIS REFUSAL OF THE COURT OF APPEAL TO PERMIT AN APPEAL, IF AN ORDER AT ALL, WAS NOT AN APPEALABLE ORDER UNDER THE STATUTE OF 1876.
- LORD HERSCHELL: -
- LORDS, I CONCUR IN THINKING THAT THIS APPEAL CANNOT BE ENTERTAINED. IT CANNOT BE DOUBTED THAT THE OBJECT OF THE 15TH RULE OF THE 58TH ORDER WAS TO MAKE THE JUDGMENTS, AFTER THE LAPSE OF A YEAR, PRACTICALLY FINAL. IT IS CLEAR THAT SOME TIME MUST BE FIXED AT WHICH THE RIGHT OF APPEAL SHOULD CEASE, OTHERWISE PARTIES WOULD NEVER KNOW WHAT THEIR RIGHTS WERE, AND THERE WOULD BE NO POSSIBILITY OF PEOPLE BEING SAFE IN DEALING WITH THE FRUITS OF A JUDGMENT BECAUSE THE JUDGMENT MIGHT BE STILL SUBJECT TO APPEAL. BUT THEN IT WAS THOUGHT THAT THERE MIGHT BE SPECIAL CIRCUMSTANCES IN WHICH THE COURT OF APPEAL MIGHT RELAX THAT RULE AND CONSIDER THAT, NOTWITHSTANDING IT, AN APPEAL SHOULD BE PERMITTED. I THINK THAT THE MATTER WAS INTRUSTED, AND INTENDED TO BE INTRUSTED, TO THEIR DISCRETION; AND THAT THE EXERCISE OF A DISCRETION OF THAT SORT INTRUSTED TO THEM IS NOT, WITHIN THE TRUE MEANING OF THE APPELLATE JURISDICTION ACT, AN ORDER OR JUDGMENT FROM WHICH THERE CAN BE AN APPEAL. MY NOBLE AND LEARNED FRIEND ON THE WOOLSACK HAS POINTED OUT THE INCONVENIENCES WHICH WOULD ARISE FROM A CONTRARY DECISION; AND I AM CERTAINLY FORTIFIED IN THAT CONCLUSION BY THE VIEW WHICH WAS TAKEN BY THE COURT OF APPEAL WITH REFERENCE TO A VERY SIMILAR PROVISION. IN SECT. 45 OF THE JUDICATURE ACT 1873 (36 & 37 VICT.C. 66), WHICH PROVIDES FOR APPEALS TO A DIVISIONAL COURT FROM AN INFERIOR COURT, IT IS PROVIDED THAT “THE DETERMINATION OF SUCH APPEALS RESPECTIVELY BY SUCH DIVISIONAL COURTS SHALL BE FINAL UNLESS SPECIAL LEAVE TO APPEAL FROM THE SAME TO THE COURT OF APPEAL SHALL BE GIVEN BY THE DIVISIONAL COURT BY WHICH ANY SUCH APPEAL FROM AN INFERIOR COURT SHALL HAVE BEEN HEARD.” IN THAT CASE THE DISCRETION IS INTRUSTED TO THE DIVISIONAL COURT. IN THE CASE OF KAY V. BRIGGS 22 QB 343. THE DIVISIONAL COURT HAD REFUSED LEAVE TO APPEAL. THEREUPON IT WAS ATTEMPTED IN THE COURT OF APPEAL TO REVIEW THEIR DETERMINATION IN THAT RESPECT. THE COURT OF APPEAL TOOK THE VIEW THAT THEY WERE UNABLE TO ENTERTAIN THE QUESTION AND COULD NOT REVIEW THE DECISION OF THE DIVISIONAL COURT; AND THE MASTER OF THE ROLLS USES LANGUAGE WHICH APPEARS TO ME TO BE QUITE APPROPRIATE TO THE PRESENT QUESTION. HE SAYS: “IF THIS COURT COULD OVERRULE THE DISCRETION GIVEN BY THAT SECTION TO DIVISIONAL COURTS THE PRACTICAL EFFECT WOULD BE TO ALLOW AN APPEAL HERE IN EVERY CASE, BECAUSE THE FACTS OF EACH CASE WOULD BE BROUGHT BEFORE US IN ORDER TO ENABLE US TO DECIDE WHETHER OR NOT WE OUGHT TO OVERRULE THAT DISCRETION. I THINK THAT THE REAL MEANING OF SECT. 45 IS TO CONFINE THE POWER TO GIVE LEAVE TO APPEAL ABSOLUTELY TO THE DIVISIONAL COURTS.” NOW IF YOU SUBSTITUTE FOR “THE DIVISIONAL COURTS” “THE COURT OF APPEAL,” EVERY WORD OF THAT IS STRICTLY APPLICABLE TO THE PRESENT CASE; AND INDEED IF THE CONTENTION OF THE APPELLANTS WERE WELL FOUNDED I THINK IT WOULD FOLLOW THAT UNDER THIS SECT. 45 THERE COULD BE AN APPEAL TO THE COURT OF APPEAL FROM A REFUSAL BY THE DIVISIONAL COURT, AND AN APPEAL AGAIN FROM THE COURT OF APPEAL TO THIS HOUSE; SO THAT EVERY COUNTY COURT CASE MIGHT BE BROUGHT UP TO THIS HOUSE UPON THE QUESTION WHETHER AN APPEAL SHOULD BE ALLOWED OR NOT.
- LORDS, I AM QUITE AWARE THAT SIR HENRY JAMES ON BEHALF OF THE APPELLANTS ATTEMPTED TO DISTINGUISH THE TWO CASES BY REASON OF A DIFFERENCE OF LANGUAGE. IN THE PRESENT CASE IT IS SAID THAT NO APPEAL SHALL LIE AFTER A YEAR EXCEPT BY SPECIAL LEAVE, WHILST IN THE OTHER CASE IT IS SAID THAT THE DETERMINATION OF THE APPEAL SHALL BE FINAL UNLESS SPECIAL LEAVE TO APPEAL BE GIVEN. I DO NOT THINK THERE IS ANY DIFFERENCE IN THE MEANING OF THOSE TWO EXPRESSIONS. WHAT INTERPRETATION ARE YOU TO PUT UPON THE EXPRESSION “SHALL BE FINAL”? NONE BUT THIS IN THAT CONTEXT, THAT THE DETERMINATION OF THE APPEAL BY THE DIVISIONAL COURT SHALL NOT BE MADE A SUBJECT OF APPEAL UNLESS SPECIAL LEAVE BE GIVEN. WHAT DIFFERENCE IS THERE BETWEEN THAT AND SAYING THAT NO APPEAL SHALL LIE UNLESS SPECIAL LEAVE BE GIVEN? MY LORDS, I THINK THAT THERE IS NO SUBSTANTIAL DIFFERENCE BETWEEN THE TWO, AND THAT IF WE WERE TO ACCEDE TO THE ARGUMENT FOR THE APPELLANTS WE SHOULD BE BOUND TO OVERRULE THE CASE OF KAY V. BRIGGS 22 QB 343 AND TO PRONOUNCE A DECISION WHICH WOULD BE AS PREJUDICIAL IN THE CASE OF ALL COUNTY COURT APPEALS AS TO PERMIT THE APPEAL WOULD BE IN THIS CASE.
- LORD MACNAGHTEN: -
- LORDS, I CONCUR. I THINK THAT ACCORDING TO THE TRUE CONSTRUCTION OF THE JUDICATURE ACT AND ORDERS, THE COURT OF APPEAL ARE CONSTITUTED THE SOLE AND FINAL JUDGES OF THE QUESTION WHETHER AN APPEAL TO THEM SHOULD OR SHOULD NOT BE ADMITTED WHEN THE PROPOSED APPELLANT HAS ALLOWED THE PRESCRIBED PERIOD TO ELAPSE, AND THEREFORE THAT THERE CAN BE NO APPEAL FROM THE GRANT OR REFUSAL OF THAT INDULGENCE.
- LORD FIELD: -
- LORDS, I AM ALSO OF OPINION THAT THIS PETITION OF APPEAL SHOULD BE DISMISSED. IT SEEMS TO ME THAT THE RULES HAVE GIVEN TO THE LITIGANT AMPLE TIME FOR THE PURPOSE OF DECIDING WHETHER HE SHALL APPEAL OR NOT; IN THE CASE OF AN INTERLOCUTORY ORDER TWENTY-ONE DAYS IS THE LIMIT, IN THE CASE OF A FINAL JUDGMENT A YEAR. IT SEEMS TO ME THAT THE POLICY OF THE LEGISLATURE WAS THAT AFTER THAT TIME, WHEN THE LITIGANT HAD LOST HIS POSITION BY REASON OF HIS NOT APPEALING WITHIN THE TIME LIMITED FOR THAT PURPOSE, HE MIGHT BE RESTORED TO THAT POSITION, BUT THAT IN CARRYING OUT THAT POLICY THE LEGISLATURE INTENDED THAT THE MATTER SHOULD NOT GO BEYOND THE COURT OF APPEAL, AND THEREFORE THEY HAVE USED THE WORDS THAT LEAVE IS TO BE GIVEN - THAT IS THE LEAVE OF THE COURT OF APPEAL. IT SEEMS TO ME THAT IF YOUR LORDSHIPS WERE TO SAY NOW “WE WILL GIVE LEAVE” AND THE COURT OF APPEAL MUST ENFORCE THAT, IT WOULD BE IMPOSING UPON THEM THE DUTY OF GIVING A LEAVE, AS THEIR LEAVE, WHICH THEY IN THEIR OWN JUDGMENT, THINK OUGHT NOT TO BE GIVEN.
- LORD HANNEN: -
- LORDS, I CONCUR, AND I HAVE NOTHING TO ADD TO THE REASONS WHICH HAVE BEEN GIVEN BY THE NOBLE AND LEARNED LORDS WHO HAVE PRECEDED ME.
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Lane & Ors v. Esdaile & Ors
Smart Summary
Factual and Procedural Background
The Appellants sought to appeal a judgment more than one year after it had been entered. Under Rule 15 of Order 58 of the Rules of the Supreme Court, no appeal may be brought after that period “except by special leave of the Court of Appeal.” The Court of Appeal refused to grant that leave. The Appellants then attempted to carry the matter to the House of Lords, contending that the refusal itself was an “order” appealable under the Appellate Jurisdiction Act 1876. The Respondents raised a preliminary objection that the House lacked jurisdiction because leave to appeal had not been granted below.
Legal Issues Presented
- Whether the refusal of the Court of Appeal to give special leave to appeal constitutes an appealable “order” within the meaning of the Appellate Jurisdiction Act 1876.
- Whether permitting an appeal from the refusal of leave would defeat the purpose of Rule 15 of Order 58, which is to render judgments final after the lapse of the prescribed period unless leave is expressly granted.
Arguments of the Parties
Appellants' Arguments
- The refusal of leave by the Court of Appeal is an “order,” and every order of that court is, by the express words of the 1876 Act, appealable to the House of Lords.
- The wording of Rule 15 (“no appeal shall lie … except by special leave”) differs from the wording considered in Kay v. Briggs; hence, the present case is distinguishable and should allow a further appeal.
The opinion does not contain a detailed account of the Respondents' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Kay v. Briggs, 22 Q.B. 343 |
The discretionary refusal of leave to appeal is final and not reviewable by a higher court. |
Judge Herschell adopted the reasoning of this case to show that, as with Divisional Courts under s. 45 of the Judicature Act 1873, the Court of Appeal’s discretion under Rule 15 is not subject to further appeal. |
Court's Reasoning and Analysis
Judge Halsbury, delivering the leading opinion, stated that the right to appeal “is not to be presumed but must be given.” Because Rule 15 conditions any further appeal on the “special leave” of the Court of Appeal, no appellate jurisdiction arises unless that body affirmatively grants leave. To treat the refusal itself as appealable would undermine the very purpose of the rule—namely, to prevent unnecessary or frivolous appeals and to assure finality once the statutory period has expired.
The Judge emphasized the practical absurdity that would follow from the Appellants’ construction: both the Court of Appeal and the House of Lords could end up hearing the same matter simultaneously—one on the merits, the other on whether leave should have been granted—thereby doubling the appellate process the rule was designed to curtail.
Judge Bramwell acknowledged an initial textual difficulty: the 1876 Act makes “orders” of the Court of Appeal generally appealable. However, he concurred that a refusal of leave is not the type of “order” contemplated by that statute.
Judge Herschell reinforced the conclusion by comparing Rule 15 with section 45 of the Judicature Act 1873, previously interpreted in Kay v. Briggs. Both provisions entrust discretion to a specified court, and allowing an appeal from that discretion would nullify the intended finality.
Judges Macnaghten, Field, and Hannen agreed, adding that the litigant already has ample time to appeal as of right and that compelling the Court of Appeal to grant leave contrary to its own judgment would be inconsistent with the legislative scheme.
Holding and Implications
APPEAL DISMISSED AS INCOMPETENT, WITH COSTS.
The House of Lords held that the Court of Appeal’s refusal to grant special leave is final and not itself appealable. The decision confirms that Rule 15 of Order 58 establishes a complete bar to further appellate review once the prescribed time has elapsed unless the Court of Appeal, in its sole discretion, permits an appeal. The ruling safeguards the finality of judgments and limits the proliferation of redundant appellate proceedings; no broader doctrinal change was announced beyond clarifying the scope of appellate jurisdiction in such circumstances.
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