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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Boardman v Portman [2001] EWCA Civ 1450 (18 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1450.html Cite as: [2001] EWCA Civ 1450

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(MR JUSTICE ELIAS)

		Royal Courts of Justice Strand London WC2 Wednesday, 18th July 2001

Wednesday, 18th July 2001 Boardman

1. LORD JUSTICE SCHIEMANN: Before the court is an application by Mr Boardman to appeal an order of Mr Ian Joseph and Deputy Master of Civil Appeals made on 25th April of this year. It is not necessary to explore the factual background in depth.
2. Mr Boardman appealed to the High Court pursuant to section 18 of the Audit Commission Act 1998 against the refusal by a district auditor to certify under that section. That appeal was heard by Elias J but dismissed. Mr Boardman wished to appeal that decision by Elias J to this court. He needs the permission to appeal to this court and this was refused by Elias J. He made, as he was entitled to, a renewed application for permission to Mance LJ who, after a hearing in open court refused that application in a judgment running to over 40 paragraphs. Mr Boardman is unhappy about the way Mance J dealt with his application. Mr Boardman wishes more Lords Justices to consider the correctness of that refusal by Mance J to grant him permission to appeal, or, if more Lords Justices will not do it he wishes the House of Lords to do it. He objects both to the substance of the decisions reached by Elias J and Mance LJ but also to the way in which he says they treated him. He gave as an example that he claims that in front of Elias J that judge and counsel for the district auditor conducted their exchanges throughout "as if they were within a professional coterie of which I as a layman was not to be a party." One can well understand how a layman can feel that.
3. Mr Boardman, who is a person of considerable sensitivity for other peoples' points of view, I think would also understand how in a matter which to a degree was a matter of considerable legal complexity a judge faced with a lawyer and a litigant in person will seek the assistance of the lawyer to try and get hold of the relevant sections of the relevant Acts so as to enable him to foot his way through the statutory jungle. In any event he was, as I say, unhappy.
4. On 9th August 2000 he was informed that the Deputy Master had directed that:

"There is no further right of appeal from a refusal by a Single Lord Justice to grant permission to appeal at an oral hearing at which the applicant was present."

5. On 25th April 2001 his further attempts to secure a further judicial investigation into what has happened was met by the following direction of the Deputy Master:

"There is no right of review of the decision of a Lord Justice of Appeal refusing permission to appeal at an oral hearing (pursuant to S54 Access to Justice Act 1999)."

6. It is this direction which he wishes to challenge. As I understand it from him this afternoon he attempted to petition the House of Lords, and the judicial office (or someone in it) said to him as he understood it, that since he had not been to the Court of Appeal he could not go to the House of Lords. And so he comes back to us so, at the worst, to clear the way to the hearing for the House of Lords.
7. The present hearing before my Lord and myself is designed to establish whether there is indeed no further right of challenge in such circumstances. We are not presently concerned with whether Elias J or Mance LJ erred in law or demeanour. We have told Mr Boardman that for the purposes of the present hearing we will assume that they did get the law wrong and did not treat him in as full a way as he would have wished, and gave the impression that they were discussing the law with the other side at great length and did not discuss it with him for a sufficient length.
8. Mr Boardman rightly submits that the direction of the deputy master, if it is correct, implies that the decision of a single Lord Justice is beyond challenge even if it is manifestly legally wrong and the Lord Justice refused to listen properly to the arguments put to him. The crucial question before us is whether the decision of a single Lord Justice refusing permission to appeal is beyond challenge before other Lords Justices. We cannot as such decide whether it is beyond challenge to the House of Lords.
9. The relevant statutory provisions start with the Supreme Court Act 1981 as amended by the Access to Justice Act 1999. Section 54(2) of the Supreme Court Act 1981 now provides:

"... a court shall be duly constituted for the purpose of exercising any of its jurisdiction if it consists of one or more judges."

10. By so enacting Parliament changed the law and enabled the Court of Appeal to act through a single judge.
11. The first problem that Mr Boardman faces is that the single Lord Justice in the present case was speaking for the Court of Appeal and thus gave the decision of the Court of Appeal. If Mr Boardman's recollection of his dealings with the House of Lords' judicial office is correct then there is a misunderstanding on someone's part about the matter. That position seems to me to be perfectly clear.
12. The other relevant provisions are to be found in the Access to Justice Act 1999 section 54. That provides in subsection (1):

"Rules of court may provide that any right of appeal to...

(c) the Court of Appeal, may be exercised only with permission.

(4) No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect the right under rules of court to make a further application for permission to the same or another court)."

13. It is that subsection which inhibits Mr Boardman, as I see it, from appealing to the House of Lords. It is not that subsection which prevents him from coming to us. The subsection which has that effect, as I see it, is section 54(2) of the Supreme Court Act 1981.
14. The right to appeal at all is not actually expressly given. What we find in section 16 of the Supreme Court Act 1981 is this provision in subsection (1):

"... the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court."

15. So on its face this does not confer on the litigant a right of appeal; it merely gives the Court of Appeal the jurisdiction to hear an appeal.
16. Under the Civil Procedure Act 1997 it is provided in section 1 that there are to be Civil Procedure Rules governing the practice and procedure to be followed in the Civil Division of the Court of Appeal, and it provides that schedule 1 is to have effect. Schedule 1 provides in its second paragraph:

"Civil Procedure Rules may provide for the exercise of the jurisdiction of any court within the scope of the rules by officers or other staff of the court."

(6) Civil Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions."

17. The Civil Procedure Rules provide in Rule 52.3:

"An appellant or... requires permission to appeal -

(a) where the appeal is from a decision of a judge in... the High Court...

(2) An application for permission to appeal may be made -

(a) to the lower court at the hearing at which the decision to be appealed was made; or

(b) to the appeal court in an appeal notice.

(3) Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the Appeal Court.

(4) Where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing."

18. Mr Boardman's problem is that the Appeal Court here operated in the persona of Mance LJ and he did hold a hearing prior to refusing permission to appeal and therefore Mr Boardman cannot make use of the provision in sub-rule 4 to request that decision to be reconsidered at a hearing. In my judgment it is plain beyond argument that Mance LJ was speaking as the Court of Appeal pursuant to the provision of section 54(2) of the Supreme Court Act 1981, and that section 54(4) of the 1999 Act on its face prevents an appeal from the decision of Mance LJ made in open court after a hearing to refuse permission to appeal. As I have indicated that decision was a decision of the Court of Appeal, and there is no possibility of any appeal from the Court of Appeal to the Court of Appeal. Any possible appeal from the Court of Appeal would have had to be to the House of Lords and it is that which is prohibited by subsection 54(4) of the 1999 Act. That in my judgment is so even if the Lord Justice made a mistake as to the law or exercised his discretion in a manner with which other Lords Justices might disagree. I can well understand that this might leave a litigant such as Mr Boardman dissatisfied. But the legislator has had to balance the injustice caused by a - let it be assumed - wrong decision of the single judge, but followed by a - let it be assumed - wrong decision of a single Lord Justice against the bad effects on other litigants and the public purse of providing for a yet further challenge. The legislator manifestly concluded that the risk of injustice was sufficiently small to be a price worth paying for a general rule which prevents litigants who have repeatedly failed to establish their contentions from occupying the judicial resources of the state any more. All that appears to me to be clear from the statutes.
19. Mr Boardman refers to the European Convention of Human Rights. In my judgment that does not really bite on the jurisdictional points with which we are concerned. There is nothing in that Convention which guarantees the citizen a right of appeal in civil cases (see the European Court of Justice case of Delcourt v Belgium [1970] 1 EHRR page 355 paragraph 25.
20. Therefore this application or appeal, however it is best described, does not succeed.
21. We order a transcript to be transcribed at public expense and that a copy be sent to the Civil Appeals Office and to the Judicial Office of the House of Lords.
22. LORD JUSTICE KEENE: I agree.
(Application refused; no order for costs).