COLLEY v COUNCIL FOR LICENSED CONVEYANCERS [2001] EWCA Civ 1137

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR. JUSTICE BLOFELD

[2001] EWCA Civ 1137

Case No Case No: C/2000/3415/3416

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 17th July 2001

Between

COLLEYAppellant

COUNCIL FOR LICENSED CONVEYANCERSRespondent

Before

Lord Justice May

Lord Justice Dyson

Mr. Murray Hunt (instructed by Messrs Strachan Visick for the Appellant)

Mr. J. David Cook (instructed by Messrs Reynolds Porter Chamberlain for the Respondent)

Date 17 July 2001

[1]THE VICE-CHANCELLOR: This is the judgment of the Court. Introduction The appellant, Mr Colley, is a licensed conveyancer. The respondent, the Council for Licensed Conveyancers ("the Council"), is the statutory body entrusted by Parliament with the regulation of the provision of conveyancing services by those who are not solicitors. Various complaints to the Council about the professional services provided by Mr Colley to his clients gave rise to two orders dated respectively 5th June 2000 ("the June Decision") and 15th August 2000 ("the August Decision"). Mr Colley wished to challenge them.

[2]Mr Colley's first attempt was by way of judicial review. On 1st September 2000 Owen J refused Mr Colley permission to apply on the ground that s.26(7) Administration of Justice Act 1985 ("the 1985 Act") conferred on Mr Colley a statutory right of appeal to the High Court which he had not used. So, on 13th September 2000, Mr Colley served appellant's notices in respect of both decisions. He sought extensions of time within which to do so but not permission to appeal generally. Those applications came before Blofeld J on 24th October 2000. At that stage it was assumed by all parties that permission to appeal was required pursuant to CPR Rule 52.3. Blofeld J granted limited permission to appeal from the June Decision but refused permission to appeal from the August Decision.

[3]Mr Colley was dissatisfied with this outcome. He took the view, following the further reflection of his advisers, that permission to appeal was not required to enable him to challenge in the High Court both the June Decision and the August Decision. Accordingly on 7th November 2000 Mr Colley served appellant's notices in respect of the two orders of Blofeld J. In respect of both Decisions he seeks permission to appeal and an order setting aside the order of Blofeld J on the footing that his right of appeal is unrestricted.

[4]Permission to appeal was refused on paper by Sir Murray Stuart-Smith on 20th December 2000. The application was renewed in court before Schiemann and Sedley LJJ on 15th February 2001. They adjourned it to come on after notice had been given to the Council. The written argument of counsel for Mr Colley dated 21st February 2001 in support of Mr Colley's application raised the additional point that Owen J was wrong to have considered that the statutory right of appeal extended to the June Decision as well as the August Decision. He submitted that the application and appeal in respect of the June Decision should proceed by way of judicial review under CPR Part 54. In addition he sought to amend his appellant's notice relating to the June Decision to raise two points additional to those for which Blofeld J had given permission. He sought similar relief relating to the August Decision. Finally he contended that if permission is required then it should be granted unconditionally by this court. The written argument of counsel for the Council dealt with each of these issues. In addition he drew our attention to the provision in s.26(8) of the 1985 Act that the decision of the High Court on an appeal under that section is final.

[5]Thus there are five issues:(1) whether the right of appeal conferred by s.26(7) of the 1985 Act applies to the June Decision,

(2) whether permission to appeal is required for an appeal under that section in respect of the August Decision and, depending on the outcome of issue (1), the June Decision,

(3) whether Mr Colley should have permission to amend his appellant's notices,

(4) whether Mr Colley should be granted unrestricted permission to appeal in respect of both Decisions and

(5) whether the provision in s.26(8) of the 1985 Act that the decision of the High Court on an appeal under that section is final has any and if so what effect on such order as we would otherwise make.

[6]The inter partes hearing commenced before the President and Keene LJ on 25th June 2001. They thought that at least the second issue should be considered by a court comprising three judges. Accordingly the hearing was adjourned and recommenced before us on 27th June 2001. We heard argument from both parties on the first issue that day. We concluded, and so informed the parties, that the statutory right of appeal conferred by s.26(7) of the 1985 Act did extend to the June Decision. We then heard argument on the second issue in relation to both the June Decision and the August Decision. It was agreed that whatever the outcome of the second issue the third and fourth did not call for any decision from us. In the case of the third issue questions of amendment must be for the judge before whom the appeal ultimately comes. In the case of the fourth issue s.54(4) Access to Justice Act 1999 ("the 1999 Act") precludes any appeal from the decision of Blofeld J on whether or not permission to appeal, if required, should be granted. Accordingly what follows are our reasons for concluding that the statutory right of appeal conferred by s.26(7) of the 1985 Act extends to the June Decision and our decision on the second and fifth issues. The Facts

[7]Before turning to those matters we should briefly refer to the underlying facts. The June Decision related to the alleged conduct of Mr Colley when acting for a Mrs Barker in connection with her purchase of a leasehold flat in Bournemouth. The lease to her did not contain any express right of access from the front door of the building over the hallway to the front door of her flat. When she came to sell her lease in 1998 the purchaser was not prepared to rely on such implied rights as might exist. In consequence Mrs Barker spent £500 in obtaining an express grant. Mrs Barker complained to the Council. The matter was referred to the Investigating Committee who directed Mr Colley to pay £500 to Mrs Barker and to repay to her certain fees she had paid. The direction was not complied with and the Council preferred a complaint to the Disciplinary and Appeals Committee which, on 5th June 2000, made the June Decision. The Decision, made under a specific statutory provision to which we will refer in due course, was that the Direction of the Council given by its Investigating Committee should be treated for the purposes of enforcement as if it were contained in an order of the High Court. In addition Mr Colley was ordered to pay to the Council £4,112.50 towards their costs of pursuing the complaint.

[8]The August Decision arose out of complaints made by the Council in connection with the sale of Mr. and Mrs. Wheeler's house in Poole. The allegations were to the effect that Mr Colley continued to act for Mr. and Mrs. Wheeler and Mr. and Mrs. Carter when a conflict of interest had arisen in that Mr. Colley was also instructed by Mr. and Mrs. Carter in connection with the prospective purchase of the property at a lower price than that offered by the second prospective purchasers, Mr. and Mrs. Phippin; that he failed properly to protect their interests and failed to comply with an oral undertaking he had given. The Disciplinary and Appeals Committee found these charges proved. By their order made on 15th August 2000 they suspended Mr Colley's practising licence for 6 months and directed him to pay a contribution to their costs of pursuing the complaints of £19,933.75.

[9]We should also mention that the grounds relied on by Mr Colley in his applications for judicial review related more to the composition of the various committees by whom the charges against Mr Colley were heard than the underlying merits of the complaints. We understood that Mr Colley also contended in relation to the June Decision that Mrs Barker enjoyed sufficient implied rights and in relation to the August Decision that there was in fact no conflict of interest. The statutory right of appeal

[10]The first issue requires a close consideration of the provisions of Part II of the 1985 Act dealing with licensed conveyancing and s.53 of and Schedule 8 to the Courts and Legal Services Act 1990 ("the 1990 Act") by which they were amended and extended.

[11]One of the purposes of the 1985 Act was to regulate the provision of conveyancing services by persons who are not solicitors but are licensed in accordance with Part II of that Act. The Council was established by s.12 in accordance with the provisions set out in Schedule 3 as a licensing and disciplinary body for those providing such services. By s.13 the Council is required to make rules for the education and training of those seeking to practise as licensed conveyancers. Ss.14 to 19 deal with applications for, the grant of and the suspension or termination of such licenses. By s.20 the Council is required to make rules as to professional practice, conduct and discipline of licensed conveyancers and ss.21 to 23 deal with financial requirements as to insurance, accounting for clients' money and interest thereon.

[12]Ss.24 to 26 deal with disciplinary proceedings. The process involves a preliminary investigation by an Investigating Committee ("IC"), in accordance with s.24, followed by a hearing before a Disciplinary and Appeals Committee ("DAC"), in accordance with s.25. S.26, as originally enacted and so far as material, provided "26. -(1) Where on the hearing of any allegation the Discipline and Appeals Committee are satisfied that a licensed conveyancer - (a) has been convicted as mentioned in section 24(1)(a)(i) of an offence which renders him unfit to practise as a licensed conveyancer; (b) has, while holding a licence in force under this Part, failed to comply with any condition to which that licence was subject; or (c) has failed to comply with any rules made by the Council under this Part, the Committee may, if they think fit, make one or more of the orders referred to in subsection (2).

(2) Those orders are - (a) an order revoking any licence held by the licensed conveyancer; (b) an order directing that the licensed conveyancer shall be disqualified (either permanently or during a specified period) from holding a licence under this Part; (c) an order suspending any licence held by the licensed conveyancer; (d) an order that any such licence shall have the effect subject to such conditions as may be specified in the order; (e) an order directing the payment by the licensed conveyancer of a penalty not exceeding £3,000, to be forfeited to Her Majesty; (f) an order that the licensed conveyancer be reprimanded by the Council; (g) an order requiring the licensed conveyancer to pay the costs incurred in bringing against him the proceedings before the Committee or a contribution towards those costs, being a contribution of such amount as the Committee consider reasonable.

(3) Where, on the hearing of any allegation or complaint, it appears to the Committee that the professional services provided by a licensed conveyancer in connection with any matter in which he or his firm had been instructed by a client were in any respect not of the quality that could reasonably have been expected of him as a licensed conveyancer the Committee may, if they think fit - (a) determine that the fees to which the licensed conveyancer or his firm shall be entitled in respect of those services shall be limited to such amount as may be specified in their determination; and (b) by order direct him to comply, or to secure compliance, with such one or more of the following requirements as appear to them to be necessary in order to give effect to their determination, namely - (i) a requirement to refund the whole or part of any amount already paid by or on behalf of the client in respect of the fees of the licensed conveyancer or his firm in respect of those services; (ii) a requirement to remit the whole or part of those fees; (iii) a requirement to waive, whether wholly or to any specified extent, the right to recover those fees." [(4) – (6)] "(7) A person against whom an order is made by the Committee by virtue of subsection (1) may appeal to the High Court, and on any such appeal the High Court may make such order as it thinks fit. (8) The decision of the High Court on an appeal under subsection (7) shall be final."

[13]It will be noted that subsection (3) provided for inadequate professional services to be dealt with in accordance with the procedure under subsection (1). Consequently a complaint to that effect leading to an order under subsection (2) was within the statutory right of appeal conferred by subsection (7).

[14]Part II of the 1990 Act deals with the extension of conveyancing services. S.53 contains a number of provisions applying to the Council earlier provisions of the Act. S.53(7) calls attention to the fact that Schedule 8 makes further provision in connection with the powers given to the Council by the 1985 Act in relation to licensed conveyancers including amendments of Part II of the 1985 Act. One of the amendments was the repeal of s.26(3) of the 1985 Act. Subsection (7) authorises the Lord Chancellor to modify any of the provisions of Part II of the 1985 Act in connection with the provisions made by that section and by Schedule 8. So far as relevant s.53(9) provides "(9) Subject to any provision made by this section, Schedule 8 or any order made by the Lord Chancellor under subsection (8), the provisions of Part II of the Act of 1985 shall, with the necessary modifications, apply with respect to -(a) any application for an advocacy, litigation or probate licence;

(b) any such licence;

(d) rules made by the Council under Schedule 8;

(e) the management and control by licensed conveyancers (or by licensed conveyancers together with persons who are not licensed conveyancers) of bodies corporate carrying on businesses which include the provision of advocacy, litigation or probate services; and

(f) any other matter dealt with by this section or Schedule 8, as they apply with respect to the corresponding matters dealt with by Part II of that Act."

[15]Schedule 8 to the 1990 Act contains a number of provisions dealing with Qualification regulations and rules of conduct, the application for and issue of licences and their revocation and suspension. Part II of the Schedule is entitled "Amendments of provisions relating to the powers of the Council etc". Paragraph 12 contains powers of delegation. Paragraph 13 deals with the Council's power of intervention. Paragraphs 14 to 18 are concerned with Inadequate Professional Services. Paragraph 14 authorises the Council to take any of the steps mentioned in paragraph 15 with respect to a licensed conveyancer "where it appears to it that the professional services provided by him in connection with any matter in which he or his firm has been instructed by a client have, in any respect, not been of the quality which it is reasonable to expect of him as a licensed conveyancer."

[16]The steps referred to in paragraph 15 are directions with regard to limiting the costs charged by the licensed conveyancer, securing, at his expense, rectification of any error or omission of his and the payment of compensation to his client. Thus the regime for dealing with inadequate professional services was separated from s.26(1) of the 1985 Act. Paragraph 17 provides "(1) If a licensed conveyancer fails to comply with a direction given under this Part of the Schedule, any person may make a complaint in respect of that failure to the Discipline and Appeals Committee; but no other proceedings whatever shall be brought in respect of it. (2) On the hearing of such a complaint the Discipline and Appeals Committee may, if it thinks fit (and whether or not it makes any order under section 26(2) of the Act of 1985), direct that the direction be treated for the purpose of enforcement, as if it were contained in an order made by the High Court."

[17]It will be noted that the June Decision was made in exercise of the power conferred by paragraph 17(2). That is what the DAC said they were doing both to Mr Colley at the outset of the hearing and in the formal order they made. Indeed the requirement that Mr Colley pay £500 to Mrs Barker could only have been made under paragraph 15 of the 1990 Act.

[18]It is in these circumstances that counsel for Mr Colley submits that the statutory right of appeal does not extend to the June Decision. He submits that s.26(7) applies only to an order made by virtue of subsection (1) in relation to a complaint properly brought under that subsection. He contends that the proceedings in which the June Decision was made was a complaint under Paragraph 17(1) of the 1990 Act not one falling within s.26(1) of the 1985 Act.

[19]Counsel for the Council contends that the relevant provisions of the 1985 Act and the 1990 Act must be read together. He submits that a failure to comply with a direction is a breach of the rules and so comes within s.26(1). He points out that the 1990 Act made comparable provision for solicitors' inadequate professional services and provided unambiguously for a statutory right of appeal.

[20]In reply counsel for Mr Colley points out that Mr Colley was not charged under s.26(1). He submits that no assistance is derived from the different provisions dealing with solicitors. He suggests that the two regimes, that is s.26 of the 1985 Act and Paragraphs 14 to 17 of the 1990 Act, run on parallel lines and do not meet.

[21]In our view it is plain that the statutory right of appeal does apply to the June Decision. Before the changes made by the 1990 Act inadequate professional services were dealt with in accordance with s.26. As such the statutory right of appeal necessarily applied. We see no reason why, when making separate provision for such matters in Schedule 8, Parliament should have intended that the challenge to such an order should thereafter be by way of judicial review. Paragraph 17(2) recognises that the same conduct may lead to an order under s.26(2) as well as a direction under Paragraph 17(1). It would be absurd if the method of challenging the two orders in court should differ, one being by way of judicial review and the other by way of appeal.

[22]In our view the solution is provided by s.53(9). We have quoted the subsection in full in paragraph 14 above. If one rewrites the subsection substituting the specific for the general it provides that "the provisions of Part II of the Act of 1985 [s.26(7)] shall, with the necessary modifications, apply with respect to - (f) any other matter dealt with by this section or Schedule 8 [a direction under paragraph 17(2)], as they apply with respect to the corresponding matters [s.26(1) and (2)] dealt with by Part II of that Act."

[23]Counsel for Mr Colley submitted that there was no sufficient correspondence between s.26(1) and (2) of the 1985 Act and paragraph 17 of Schedule 8 to the 1990 Act. He also suggested that if this is what Parliament had intended it would have made more specific provision than this. We reject both those submissions. The two provisions plainly correspond because inadequate professional services with which paragraph 17 is concerned were formerly dealt with under s.26 because of the terms of subsection (3). Given that correspondence the provision is sufficiently specific even if not immediately apparent.

[24]For all these reasons we conclude that the statutory right of appeal provided in s.26(7) is exercisable in respect of a direction made under paragraph 17(2). Accordingly an appeal from the June Decision lies to the High Court. It follows that we reject the submission of counsel for Mr Colley that Owen J was wrong when he refused to permit Mr Colley to proceed by way of judicial review. Permission to appeal

[25]Consequently, the second issue, whether or not the right of appeal is exercisable only with permission, arises in respect of both the June Decision and the August Decision. The outcome of this issue will affect not only the rights of Mr Colley in this case but the rights of all those seeking to exercise any statutory right of appeal to the High Court.

[26]The right of access to a court is of fundamental constitutional importance. It is scarcely necessary to refer to authority for that obvious proposition. Lord Bingham of Cornhill stated in R. (Daly) v. Secretary of State for the Home Department

[2001] 2 WLR 1622

at 1625G that important rights, including the right of access to a court, calling for appropriate legal protection, may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. For present purposes, it seems to us that access to a court means that those who need the assistance of a court to assert their legal rights and obtain remedies to which they are in law entitled are able to start proceedings in an appropriate court to that end. Having started the proceedings, they are entitled to have the court determine them according to law.

[27]The civil justice system in this jurisdiction has for over 100 years had a structure for appeals and there are rights of appeal against most first instance decisions. There are some instances where rights of appeal are limited by statute. Until fairly recently, leave or permission to appeal was not required for many classes of appeal. It has, at least in modern times, always been necessary to obtain leave to appeal to the House of Lords. In courts below the House of Lords, there have been progressive moves to introduce a requirement for leave or permission to appeal. It is unnecessary to trace the full history. By way of example, section 7 of the Courts and Legal Services Act 1990 inserted section 18(1A) of the Supreme Court Act 1981, which empowered what became Order 59 rule 1B of the Rules of the Supreme Court. This rule was added by S.I. 1993 No. 2133 and amended by S.I. 1995 No. 2206. It prescribed classes of case in which leave to appeal to the Court of Appeal was required. From 1st January 1999, the requirement for permission to appeal to the Court of Appeal was extended so that permission was required for all appeals except appeals against committal orders, refusals to grant habeas corpus and secure accommodation orders made under section 25 of the Children Act 1989.

[28]The current provisions start with s.54 of the Access to Justice Act 1999 ("the 1999 Act"). So far as relevant that section provides "(1) Rules of court may provide that any right of appeal to -(a) a county court,

(b) the High Court, or

(c) the Court of Appeal, may be exercised only with permission. [(2) and (3)] ( 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 any right under rules of court to make a further application for permission to the same or another court). (5) For the purposes of this section a right to make an application to have a case stated for the opinion of the High Court constitutes a right of appeal."

[29]The rule now governing appeals is CPR Rule 52.3(1). That provides, so far as relevant, "(1) An appellant or respondent requires permission to appeal -(a) where the appeal is from a decision of a judge in a county court or the High Court, except where the appeal is against - (i) a committal order; (ii) a refusal to grant habeas corpus; or (iii) a secure accommodation order made under section 25 of the Children Act 1989; or

(b) as provided by the relevant practice direction. (Other enactments may provide that permission is required for particular appeals)."

[30]Part 52 then provides that an application for permission to appeal may be made to "the lower court" or to the appeal court. Rule 52.1(3)(c) defines "lower court" to mean "the court, tribunal or other person or body from whose decision an appeal is brought". Rule 52.3(4) provides that if the appeal court refuses permission to appeal without a hearing, the person seeking permission may request the decision to be reconsidered at a hearing. Rule 52.3(6) provides that permission to appeal will only be given where:

"(a) The court considers that the appeal would have a real prospect of success; or (b) there is some other compelling reason why the appeal should be heard."

There are other parts of rule 52 (mainly 52.3, 52.4 and 52.5) which make provision for or allude to the need for permission to appeal.

[31]The definition of the "lower court" makes clear that the rule is intended to apply, or be capable of applying, to appeals from tribunals and other persons or bodies from whose decision an appeal is brought. Leaving tribunals and these others aside for a moment and concentrating on appeals within the civil court system, it might be said that the existence or otherwise of a system of appeal and the details of its operation do not impinge on the right of access to a court. The right of access is accommodated by the right to bring proceedings at first instance and to have them determined according to law. Rights of appeal are not so much rights of access to a court, as rights to have the opportunity of persuading a higher court that the first instance decision is wrong. There are instances where Parliament expressly provides that there shall be no right of appeal from particular kinds of decision. But the entrenched system of appeals enabling dissatisfied litigants to appeal at least once to a higher court recognises the possibility that on occasions first instance decisions may be unjustly wrong and provides a means of putting them right.

[32]The imposition of a requirement for permission to appeal may curtail rights of appeal, but the nature and extent of the curtailment will depend on the criteria adopted for giving or refusing permission and the procedural arrangements for seeking it. As to the latter, rule 52.3(4) entitles a person seeking permission to ask for the decision to be reconsidered at a hearing. As to the criteria for giving or refusing permission, under rule 52.3(6) the court has to consider that the appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard. There is thus a filter to stop proposed appeals which have no real prospect of success and where there is no other compelling reason why the appeal should be heard. Although, of course, this filter may be described as a restriction on a person's right of appeal, there is, in our judgment, no restriction on the applicant's access to the court at all – on the contrary, they have the positive right to come to court and argue their case. There is no substantial restriction – and certainly no intrinsically unjust restriction – on the right of appeal, since there is, in our view, no reason in justice why a person should be entitled to occupy the time of the court, and put opposing parties to expense and trouble, in conducting appeals which have no real prospect of success and where there is no other compelling reason why the appeal should be heard.

[33]Although, as we have indicated, the definition of "lower court" in rule 52.1(3) indicates that the rule may apply to appeals to a court from tribunals, rule 52.3(1) does not in terms impose a requirement for permission to appeal on such appeals. Rule 52.3(1)(b) is drafted to enable the relevant practice direction to provide for permission to appeal to be required in circumstances other than those covered by rule 52.3(1)(a). In the context, this plainly includes statutory appeals, since appeals within the court system itself are covered by sub-sub-paragraph (a). The parenthesis draws attention to "particular appeals" for which other enactments may provide that permission is required.

[34]We should also refer to provisions in the Civil Procedure Act 1997. S.1(2) provides that Schedule 1 is to have effect. Paragraph 6 of that Schedule states that "Civil Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter in directions." Practice Directions are defined by s.9(2) as "directions as to the practice and procedure of any court within the scope of Civil Procedure Rules".

[35]The practice direction associated with CPR Part 52, 52PD, provides, in paragraph 17.2, "Part 52 applies to statutory appeals with the following amendments." The amendments are to points of detail in the procedure which do not refer to or bear upon the question of permission to appeal. Section III of this practice direction makes special provisions about a long list of very largely statutory appeals. The section is not exhaustive and does not create, amend or remove any right of appeal. The lists, although not exhaustive, give a vivid idea of the large number of statutory appeals to which this practice direction applies. The special provisions in Section III mainly concern time limits and persons who have to be served. In no instance do the special provisions include a requirement for permission to appeal which is not already required by the statutes in question.

[36]Paragraph 18 of the practice direction applies to appeals by way of case stated. As with paragraph 17, it applies subject to any provision about a specific category of appeal in any enactment and to Section III of the practice direction. Paragraph 18.2 provides that Part 52 applies to appeals by way of case stated subject to amendments which follow. The amendments include, in paragraph 18.3, that the procedure for applying to the Crown Court or a Magistrates' Court to have a case stated for the opinion of the High Court is set out in the Crown Court Rules 1982 and the Magistrates' Court Rules 1981 respectively. There is thus preserved for cases stated what is in broad substance a species of permission to appeal. Thus paragraph 18.3 of the practice direction must, in our view, be taken to modify, for cases stated, the provisions in rule 52 relating to permission to appeal.

[37]In refusing permission to appeal on the papers Sir Murray Stuart-Smith evidently considered that the effect of paragraph 17.2 of the Practice Direction was to apply the provisions of CPR Rule 52.3(1)(a), with the necessary modifications, to statutory appeals. Counsel for Mr Colley submits that he was wrong to have done so.

[38]The issue, therefore, is whether the very general words of paragraph 17.2 of the practice direction, that Part 52 applies to statutory appeals with a small handful of amendments which do not modify those parts of Part 52 which provide for permission to appeal, is sufficient to impose a requirement for permission to appeal on all statutory appeals where otherwise the right of appeal was unrestricted.

[39]Counsel for Mr Colley, submits that the restriction of a hitherto unfettered right of appeal by the imposition of a requirement for permission to appeal constitutes a restriction on the proposed appellant's right of access to a court. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. The clear and express words need to have parliamentary scrutiny and authority. As Lord Hoffmann said in R v. Secretary of State for the Home Department, ex parte Simms

[1999] 3 WLR 328

at 341:

"[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."

[40]Counsel for Mr Colley submits that section 54(1) of the Access to Justice Act 1999 does not enable rules of court to provide that a statutory right of appeal from a tribunal may be exercised only with permission; that rule 52.3(1) does not impose a requirement for permission to appeal for statutory appeals from tribunals; that a requirement for permission to appeal for statutory appeals from tribunals cannot lawfully be imposed by a practice direction because practice directions are not subject to any parliamentary scrutiny; and that paragraph 17.2 of the Part 52 Practice Direction does not, properly understood, impose any such requirements. Counsel for the Council makes submissions to the contrary for each of these regressive submissions.

[41]In our judgment, section 54(1) of the 1999 Act clearly empowers the making of rules imposing a requirement for permission to appeal which include statutory appeals to a court. The language is clear and, not least by the use of the word "any", entirely apt to include appeals of this kind. We accept the submission of counsel for Mr Colley that a statutory appeal to a court is the first opportunity for bringing the question before a court. But, as we have indicated, we do not consider that a requirement for permission to appeal under the procedure and with the criteria provided in rule 52 is properly described as a restriction on access to a court.

[42]In addition to the plain wording of section 54(1) read as a whole, there are, in our view, other indications that the section extends to statutory appeals. First, a "right of appeal to a county court" is, if anything, more apt to cover an appeal from a tribunal to a county court than an appeal within the county court, as from a district judge to a circuit judge, although this is obviously also covered. The same point applies, with somewhat less force, to "any right of appeal to the High Court". Before the introduction of the rule and practice direction with which this appeal is concerned, civil appeals to the High Court within the civil justice system were not as extensive as they now are. Second, section 54(5) provides that, for the purposes of the section, a right to make an application to have a case stated for the opinion of the High Court constitutes a right of appeal. Thus, a statutory appeal by case stated comes within section 54(1); it would be very odd if other statutory appeals did not do so also.

[43]We do not accept the submission of counsel for Mr Colley that there is no power to impose a requirement for permission to appeal in statutory appeals by means of a practice direction. Sections 1 and 2 of the Civil Procedure Act 1997 give the Civil Procedure Rule Committee power to make rules of court generally governing the practice and procedure to be followed in the Civil Division of the Court of Appeal, the High Court and County Courts. As we have already noted s.1(2) of the 1997 Act provides that Schedule 1 is to have effect. Paragraph 6 of Schedule 1 provides that "Civil Procedure Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions". Rule 52.3(1)(b) does just that. It follows that there is explicit parliamentary authority in these provisions of the 1997 Act and in section 54(1) of the Access to Justice Act 1999 for a requirement for permission to appeal in statutory appeals to be imposed by a practice direction.

[44]Further, since the parliamentary authority in section 54(1) plainly authorises the imposition of a need for permission to appeal for any or all statutory appeals, the principle of legality to which Lord Hoffmann referred in Simms has been achieved. Parliament has squarely confronted what it was doing and, at the more detailed level, has scrutinised the statutory instrument which says that a requirement for permission to appeal may be provided by the practice direction. The same applies to the procedure and criteria for the giving or refusing permission.

[45]We have found the final submission of counsel for Mr Colley much more difficult. Paragraph 17.2 of the practice direction provides in terms that Part 52 applies to statutory appeals with certain amendments. The amendments are limited and do not by their terms affect the issue. The amendments do not include any relevant changes to rule 52.3, 52.4 or 52.5, and so the general provisions relating to permission to appeal are not expressly excluded by amendment. There is a tension between the principle stated by Lord Bingham of Cornhill in Daly , that the right of access to a court may only be curtailed by clear and precise words, and the provision of CPR rule 1.2 that the court must seek to give effect to the overriding objective when it interprets any rule.

[46]There are, in our view, persuasive "overriding objective" considerations to the effect that a requirement for permission to appeal generally is salutary, necessary and just and that what now applies almost universally within the civil court system should apply also to statutory appeals. There is a structure broadly equivalent to permission to appeal retained in paragraph 18 of the practice direction for cases stated. Accordingly, there is a persuasive case that paragraph 17.2 of the practice direction is to be read as imposing a requirement for permission to appeal for statutory appeals, and that this is achieved as a matter of construction by applying rule 52.3(1)(a) to them with appropriate modification.

[47]The contrary submission, advanced by counsel for Mr Colley, is that the words of paragraph 17.2 of the practice direction cannot be read as providing for a requirement for permission to appeal. The provision is circular. Rule 52.3(1)(b) empowers – if, contrary to the submission of counsel for Mr Colley, it does – the requirement to be provided by the practice direction, but the practice direction does not do so. The practice direction provides that Part 52 is to apply to statutory appeals, but Part 52 does not impose a requirement for permission to appeal for statutory appeals. The broader submission is that the practice direction would need to impose the requirement explicitly, which it does not; and that it could not properly do so without making provision for each statutory appeal individually. Such individual treatment would be necessary to comply with Lord Bingham's requirement that any curtailment of this kind can only be achieved by clear and express words.

[48]As is indicated by the lists and provisions in Section III of the practice direction, it applies to a large number of diverse statutes which give a right of appeal to a court. They cover widely different people and circumstances and the intrinsic nature of the appeals and the tribunals from which they may be brought differ. In 4 of the cases set out in the table of statutory appeals to the High Court contained in paragraph 20 of the Practice Direction permission to do so is expressly required by the statute conferring the right of appeal. In 22 cases the statute conferring the right is silent about any need for permission, though in three of them permission is expressly required for any further appeal from the High Court to the Court of Appeal. One of the cases covered by Section III is that of contempt of court which, by CPR 52.3(1)(a), is specifically exempted from any requirement of permission to appeal. Specific provision for obtaining permission for appeals from the Tribunal direct to the Court of Appeal is made in a number of paragraphs (21.6, 21.8, 21.10) in terms which are not the same as the general provisions of Section I of PD52. In the case of an appeal from the decision of the Pensions Appeal Tribunal to the High Court the relevant Act requires permission to appeal. Paragraph 22.5 of the Practice Direction contains detailed provision as to how such permission is to be obtained. This is inconsistent with general requirements for permission to appeal and the procedure for doing so having been prescribed by Section I of the Practice Direction.

[49]The wording of rule 52.3(1)(b), in particular the words in parenthesis, is more consistent with a requirement that the practice direction should make specific provision for particular appeals; and this practice direction does not do so. As we have pointed out paragraph 17(2) cannot introduce a requirement for permission without some interpolation. Whilst such an interpolation might be justified if the Practice Direction were otherwise consistent it is not permissible if it would thereby introduce inconsistency. For the reasons indicated in paragraph 48 we consider that the introduction of a general requirement in accordance with Section I would give rise to substantial inconsistencies with Section III.

[50]In these circumstances, we do not consider that either the rule or the practice direction are to be read as intending or achieving the result for which the Council contends by the general words in paragraph 17.2 of the practice direction. In our view the rule and practice direction require if not individual provision for individual rights of appeal at least quite explicit positive provision for all statutory appeals.

[51]For all these reasons we accept the submission of counsel for Mr Colley that permission to appeal is not required for his appeals to the High Court pursuant to s.26(7) of the 1985 Act from either the June Decision or the August Decision. Permission to amend/Grant of Permission to appeal

[52]As we have already indicated neither of these issues now arise. It will be for the judge before whom the appeals ultimately come to decide whether Mr Colley should be permitted to amend his notices of appeal in the form now sought or in any other form. If contrary to our decision on the second issue permission to appeal is required the jurisdiction to decide whether to grant it is conferred exclusively on the lower court or the High Court. An appeal to the Court of Appeal against the refusal or limited grant of permission to appeal is excluded by s.54(4) of the 1999 Act. In the event that we have concluded that there is no need to obtain permission the jurisdiction of this court is not excluded by that subsection. The effect of s.26(8) of the 1985 Act

[53]We have already set out the terms of this subsection in paragraph 12 above. The question is whether the assumption by Blofeld J that permission was required and the consequential refusal of unlimited permission to appeal from either decision was a "decision of the High Court on an appeal" under s.26(7) of the 1985 Act. If it was then this court has no jurisdiction to intervene. At the conclusion of the oral argument on all the other points we invited counsel to submit further written argument on this point. We are grateful for the further written submissions they provided to us.

[54]The decision whether or not to grant permission when it is required is not appealable because of the provisions of s.54(4) of the 1999 Act. It is therefore unnecessary to reach any final conclusion whether it would also be a decision on the appeal for the purposes of s.26(8). Our inclination would be to hold that it would be because it is a consideration of the merits of the underlying dispute and, depending on the outcome, may be conclusive. The point may be important in the context of

Article 6 of the Convention

on Human Rights.

[55]But the judge's assumption, fostered by both parties, that permission to appeal was required was neither a "decision" nor a consideration of the merits of the underlying dispute. As such the jurisdiction of this court to consider the issue whether permission to appeal is required was not, in our view, excluded by s.26(8). Nor, rightly, did the Council object to Mr Colley taking in this court a point, that permission to appeal is not needed, not taken on his behalf in the court below. In these circumstances we see no impediment to the grant of such declarations or orders as are now needed to secure the prompt hearing by a High Court judge of Mr Colley's appeals from both the June Decision and the August Decision. Conclusion

[56]Subject to any further argument on the form of order we consider that we should declare that(1) the right of appeal conferred by s.26(7) of the 1985 Act applies to the June Decision as well as to the August Decision; and

(2) CPR Part 52 and its associated Practice Direction do not require a prospective appellant under that subsection to obtain any permission to appeal. In addition we will set aside those parts of the orders of Blofeld J as granted or refused permission to appeal. We will grant permission to appeal to the extent necessary to enable us to make those declarations and orders. We will direct that Mr Colley's appeals be fixed for hearing in the High Court as soon as is reasonably possible.

ORDER

Appeal allowed. Minute of order as agreed between Counsel. No order for costs. (Order does not form part of approved Judgment)

Cited in 1 later judgment

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