Jones & Ors v Ceredigion County Council [2005] EWCA Civ 986

Case No C1/2005/0142[2005] EWCA Civ 986
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
[2004] EWHC 1376 (Admin)
ON APPEAL FROM QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Collins
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 28 July 2005
Before
LORD JUSTICE WALLERLORD JUSTICE MAURICE KAYSIR CHRISTOPHER STAUGHTON
Between
Jones & OrsRespondentsCeredigion County CouncilAppellant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Andrew Nicol QC and Nicholas Bowen (instructed by Russell Jones & Walker) for RespondentsNigel Giffin QC and Jane McCafferty (instructed by Ceredigion County Council, Corporate & Legal Services Department) for Appellant
JudgmentWaller LJ :Introduction
[1]The appellate local education authority seeks to appeal from the judgment of Collins J given on 17th June 2004. Collins J gave judgment for the respondents on their claim for judicial review of the appellant’s decision that it was not under a duty, under s.509(1) of the Education Act 1996 (“the 1996 Act”), to provide the respondents with free school transport to the school which they currently attend.[2]The respondents identified four issues potentially for the court to decide.(1) Does the Court of Appeal have jurisdiction to entertain this appeal at all?(2) If it does, is the appellant entitled to rely on the permission to appeal given by Collins J?(3) If it cannot, ought the court to grant permission to appeal?(4) If the court does have jurisdiction and the appellant is either entitled to rely on the permission to appeal granted by Collins J or is granted permission to appeal by the court itself, did Collins J err in giving an affirmative answer to the issue “Is a local education authority always bound to conclude that it is necessary to provide free transportation to a pupil under s509(1) of the Education Act 1996, if that pupil’s parents would otherwise have a defence under s.444(4) of the 1996 Act to a prosecution under s.444 in the event of the pupil failing to attend regularly at school?” (referred to in the court below and in this judgment as the “linkage issue”).[3]We heard argument on the question whether the Court of Appeal had jurisdiction to entertain the appeal at all before hearing any further arguments. Having heard argument on that issue we decided to reserve our judgment in order to give the arguments further consideration. At that stage both counsel were of the view that if we were to decide that the Court of Appeal had jurisdiction we should also decide whether the appellant already had permission to appeal pursuant to the order of Collins J. Counsel were content that we should resolve that issue by reference to the points made in their skeleton argument without further oral submission. In the result, at the conclusion of the hearing on 18 July 2005, we adjourned issues (iii) and (iv) on the basis that it would be wrong for this court to get involved in the merits of issue (iv) if it were to decide that it had no jurisdiction to entertain any appeal at all.[4]The jurisdiction issue arises in this way. The appellant obtained a so-called “leapfrog” certificate from Collins J allowing it to apply direct to the House of Lords for permission to appeal his decision to that tribunal by reference to two issues decided by the judge. The judge granted permission to appeal to the Court of Appeal if the House of Lords did not grant permission. The House of Lords granted permission to appeal to that tribunal by reference to one issue, and subject to a condition that the appellant would pay the costs of the respondents. The appellant withdrew that appeal. The question is whether, by virtue of s.13(2)(a) of the Administration of Justice Act 1969 (the 1969 Act), whereby if leave to appeal to the House of Lords is granted, “no appeal from the decision of the judge to which the certificate relates shall lie to the Court of Appeal”, the appellant is now precluded from bringing an appeal to the Court of Appeal by reference to the issue on which the House of Lords refused leave.

The Factual Background

[5]An agreed statement of facts and issues is set out in paragraph 2 of Collins J’s judgment. It is unnecessary to set out the same in full. It is sufficient to summarise the position as in the appellant’s skeleton argument. The respondents live in the appellant’s area, the appellant is therefore the public authority responsible for any relevant school transport obligations which may exist.[6]There are three relevant schools: i) Ysgol Preseli (Preseli), a predominantly Welsh medium secondary school, situated in the area of, and maintained by, Pembrokeshire County Council. The respondents attend that school, which is approximately eight miles from their homes, under a preference expressed by their parents under s.86 of the Schools Standards and Framework Act 1998; ii) Cardigan Secondary School (Cardigan), a predominantly English medium secondary school, maintained by the Appellant. This school is less than three miles from the respondents’ homes; iii) Dyffryn Teifi School (Dyffryn Teifi), a predominantly Welsh medium secondary school, maintained by the appellant, which is approximately eighteen miles from the respondents’ homes.[7]The respondents could take up places at Cardigan, without the need for any transport, or at Dyffryn Teifi, where they could use the appellant’s free bus service. Pembrokeshire Council run a school bus service to Preseli. Spare seats on this service may be occupied by children from Ceridigion if the appellant funds the cost. The appellant’s ‘Home to School Transport Appeals Panel’ declined to provide the funding. Before Collins J the respondents successfully contended that as a matter of law the appellant was obliged to pay for their free transport to Preseli.

The three issues before Collins J

[8]Three issues were raised before Collins J, as appears from the Agreed Statement of Facts and Issues.(1) Issue 1: Is a local education authority always bound to conclude that it is necessary to provide free transport to a pupil under s.509(1) of the 1996 Act, if that pupil’s parents would otherwise have a defence under s.444(4) of the 1996 Act to a prosecution under s.444 in the event of the pupil failing to attend regularly at school?(2) Issue 2: On the proper construction of s.444(4)(b)(iii) of the 1996 Act, is it possible for a local education authority to have made suitable arrangements for a child to become a registered pupil at a school, if that school would not be educationally suitable for the child concerned?(3) Issue 3: If the answer to Issue 2 is “no” then is the test of the school’s suitability for the purposes of s.444(4)(b)(iii):- i) whether it is suitable in the ordinary sense of the word; or ii) whether it is suitable in the specific sense provided for by s.7 of the 1996 Act, namely that it is efficient full time education suitable to the child’s age, ability and aptitude and to any special educational needs he may have.

The conclusions of Collins J

[9]In his judgment handed down on 17 June 2004, Collins J concluded as follows:-(1) Issue 1: Collins J answered this (in favour of the respondents) in the affirmative, holding that it was always necessary to provide transport under s.509 if otherwise the sanction against truancy in s.444 would be unenforceable.(2) Issue 2: Collins J answered this question (also in favour of the respondents) in the negative, holding that the arrangements to provide transport to a school which was not suitable for that child would not be ‘suitable arrangements’ under s.444(4)(b)(iii);(3) Issue 3: Collins J indicated that he was against the appellant on this issue as well but considered that he did not need to decide the issue.[10]For the respondents to succeed in quashing the refusal of the appellant to supply transport, Collins J had to answer both the question on Issue 1 and Issue 2 in favour of the respondents, which he did and that led to the quashing of that refusal.[11]When the judgment was handed down the appellant sought a leapfrog certificate under s.12(3)(a) of the 1969 Act. Collins J indicated that he was minded to grant a certificate in relation to both issue 1 and issue 2 on the basis that the relevant conditions laid down in s.12(1) and (3) of the 1969 Act were met. But Collins J expressed the view that he was not sure that the House of Lords would want to take the matter on rather than have the matter considered again by the Court of Appeal. He made observations to that effect in the presence of Mr Bowen who represented the respondents, who at that stage was not able to say whether his clients would be likely to consent to the leapfrog procedure. Ultimately the respondents, by letter dated 24 June 2004, consented to the leapfrog procedure, that being a requirement as will be seen under s.12.[12]By order dated 29June 2004 Collins J ordered as follows:
“1.The refusal on 24 September 2003 of the Defendant [Appellant] through its Appeal Panel, to make arrangements for the provision of transport to Preseli School for the Claimants [Respondents] pursuant to section 509(1) of the Education Act 1996 be quashed. 2. A certificate be granted pursuant to section 12 of the Administration of Justice Act 1969. 3. In the event that leave to appeal to the House of Lords is not granted, the Defendant do have permission to appeal to the Court of Appeal.”

Proceedings in the House of Lords

[13]The appellant made clear that it was not going to pursue issue 3. The appellant however presented a petition to an Appeal Committee of the House of Lords (The Appeal Committee) pursuant to s.13(1) of the 1969 Act on 28 July 2004. By letter dated 1 November 2004 the Judicial Office of the House of Lords stated that:- “The Appeal Committee has considered this petition and decided to invite the respondents to lodge objections.” The letter further indicated that:- “If no objections are to be made, the Judicial Office must be informed as soon as possible and it is then likely that leave will be given.”[14]The respondents, despite their consent to the leapfrog procedure, put in objections to the grant of leave to appeal to the House of Lords on both issues. On the first issue (the linkage issue) they suggested that the arguments raised “should be subject to full analysis by the Court of Appeal”, setting out various bases on which they said that should be so. On the second issue, the respondents suggested they had conceded the leapfrog as they wished to be pragmatic and if possible save public funds, particularly as the judge had indicated that he was minded to grant the certificate, and in any event grant permission to appeal to the Court of Appeal. But (on reconsideration of the judgment) they urged their Lordships to indicate that it was a matter with which the Court of Appeal rather than the House of Lords could deal. The objections further made clear that if the Appeal Committee were minded to grant leave, then leave should only be granted on condition that the appellant paid the respondents’ costs of the appeal, or agreed to make no application for costs.[15]On 24 November 2004 the Appeal Committee decided as follows:- (1) Issue 1:
“Permission to appeal on issue 1 is refused because the petition does not raise an arguable point of law of general public importance, which ought to be considered by the House at this time, bearing in mind that the question at issue has been regarded as settled for very many years.” (2) Issue 2: “Permission for leave to appeal on issue 2 has been given on the terms that the petitioners do pay the respondent’s costs in any event.” (3) Issue 3: “Permission is refused to appeal on issue 3 because the petitioners do not ask for it.”
[16]The appellant felt somewhat aggrieved that permission to appeal had been granted subject to conditions without having been given an opportunity to make observations in relation to those conditions. Reliance in that context was placed on paragraph 4.6(b) of the House of Lords Practice Direction by Mr Giffin QC in his letter to the registrar of the House of Lords dated 15 December 2004. There is some doubt as to whether paragraph 4.6(b), which is a paragraph which relates to general applications for permission to appeal as opposed to the leapfrog procedure, applies to the leapfrog procedure. Mr Giffin was in any event invited to make observations. In those observations drafted by Mr Giffin it was pointed out that the legislation dealing with leapfrog appeals did not expressly contemplate the grant of leave to appeal to the House of Lords on only one issue. It identified as the possible consequences of the terms proposed by the Appeal Committee the following:- a) As permission has been granted on issue 2, on one construction of s.13 of the 1969 Act, the appellant would not now be able to appeal to the Court of Appeal on issue 1, despite permission having been granted by Collins J, or b) In the alternative, on the true construction of s.13 of the 1969 Act, as the appellant had been refused permission on issue 1, it could still exercise the permission granted by the judge on this issue to appeal to the Court of Appeal.[17]It pointed out how, on the basis of construction,(a) the appellant might be left without an ability to appeal issue 1. In the alternative, if(b) were the correct construction, that might produce the undesirable outcome of two concurrent appeals being pursued, one to the Court of Appeal on issue 1 and one to the House of Lords on issue 2.[18]The Appeal Committee having considered the appellant’s observations ultimately confirmed its decision of 24 November 2004 by letter dated 11 January 2005. The Appeal Committee did not indicate any view as to the effect of s.13 of the 1969 Act in those circumstances.[19]The appellant did not wish to pursue the appeal on issue 2 alone in the House of Lords and that petition of appeal has been withdrawn. The reason for the withdrawal matters not.[20]The appellants in the result wished to pursue an appeal in the Court of Appeal against the decision of Collins J by reference to the first issue alone. They suggest that Collins J has given permission to appeal his decision to the Court of Appeal by reference to that issue, and that they should thus be free to do so.

The Statutory Scheme for Leapfrog Appeals

[21]The leapfrog provisions are contained in Part 2 of the 1969 Act. S.12 governs the grant of a certificate by the judge in any civil proceedings in the High Court, which are proceedings which are before a single judge of that court (see s.12(2)). S.12(1) provides as follows:- “Where on the application of any of the parties to any proceedings to which this section applies the judge is satisfied –(a) that the relevant conditions are fulfilled in relation to his decision in those proceedings, and(b) that a sufficient case for an appeal to the House of Lords under the Part of this Act has been made out to justify an application for leave to bring such an appeal, and(c) that all the parties to the proceedings consent to the grant of a certificate under this section, the judge, subject to the following provisions of this Part of this Act, may grant a certificate to that effect.” (a) that the relevant conditions are fulfilled in relation to his decision in those proceedings, and (b) that a sufficient case for an appeal to the House of Lords under the Part of this Act has been made out to justify an application for leave to bring such an appeal, and (c) that all the parties to the proceedings consent to the grant of a certificate under this section,[22]Section 12(3) identifies the ‘relevant conditions’ in relation to ‘a decision’ of the trial judge, and provides as follows:- “Subject to an Order in Council made under the following provisions of this section, for the purposes of this section the relevant conditions, in relation to a decision of the judge in any proceedings, are that a point of law of general public importance is involved in that decision and that that point of law either –(a) relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings, or(b) is one in respect of which the judge is bound by a decision of the Court of Appeal or of the House of Lords in previous proceedings and was fully considered in the judgments given by the Court of Appeal or the House of Lords (as the case may be) in those previous proceedings.” (a) relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings, or (b) is one in respect of which the judge is bound by a decision of the Court of Appeal or of the House of Lords in previous proceedings and was fully considered in the judgments given by the Court of Appeal or the House of Lords (as the case may be) in those previous proceedings.”[23]Section 13(1) of the 1969 Act provides that in any proceedings where the judge grants a certificate under section 12, any of the parties to the proceedings may make an application to the House of Lords seeking permission for leave to appeal to that House.[24]Section 13(2) is the key sub-section so far as the jurisdiction is concerned. It provides as follows:- “Subject to the following provisions of this section, if on such an application it appears to the House of Lords to be expedient to do so, the House may grant leave for an appeal to be brought directly to the House; and where leave is granted under this section –(a) no appeal from the decision of the judge to which the certificate relates shall lie to the Court of Appeal, but(b) an appeal shall lie from that decision to the House of Lords.” (a) no appeal from the decision of the judge to which the certificate relates shall lie to the Court of Appeal, but (b) an appeal shall lie from that decision to the House of Lords.”[25]Section 13(5) sets out the circumstances under which an appeal to the Court of Appeal lies from a decision of the judge in respect of which a certificate has been granted and provides as follows:- “Without prejudice to subsection (2) of this section, no appeal shall lie to the Court of Appeal from a decision of the judge in respect of which a certificate is granted under section 12 of this Act until –(a) the time within which an application can be made under this section has expired, and(b) where such an application is made, that application has been determined in accordance with the preceding provisions of this section.”[26]Section 15 deals with cases excluded from section 12 and provides as follows:- “(1) No certificate shall be granted under section 12 of this Act in respect of a decision of the judge in any proceedings where by virtue of any enactment, apart from the provisions of this Part of this Act, no appeal would lie from that decision to the Court of Appeal, with or without the leave of the judge or of the Court of Appeal. (2) No certificate shall be granted under section 12 of this Act in respect of a decision of the judge where –(a) | . . . |(b) by virtue of any enactment, apart from the provisions of this Part of this Act, no appeal would (with or without the leave of the Court of Appeal or of the House of Lords) lie from any decision of the Court of Appeal on an appeal from the decision of the judge. (3) Where by virtue of any enactment, apart from the provisions of this Part of this Act, no appeal would lie to the Court of Appeal from the decision of the judge except with the leave of the judge or of the Court of Appeal, no certificate shall be granted under section 12 of this Act in respect of that decision unless it appears to the judge that apart from the provisions of this Part of this Act it would be a proper case for granting such leave. (4) No certificate shall be granted under section 12 of this Act where the decision of the judge, or any order made by him in pursuance of that decision, is made in the exercise of jurisdiction to punish for contempt of court.” (a) | . . . | (b) by virtue of any enactment, apart from the provisions of this Part of this Act, no appeal would (with or without the leave of the Court of Appeal or of the House of Lords) lie from any decision of the Court of Appeal on an appeal from the decision of the judge.

The Appellant’s Submissions on the Jurisdiction Point

[27]Mr Giffin’s submissions developed during the course of oral argument from those contained in his written submissions. He accepted that the Court of Appeal’s jurisdiction in circumstances where the House of Lords has granted leave on any issue turns on the proper construction of s.13(2)(a) of the 1969 Act. He accepted that, on the face of it , it could be said that(1) leave had been granted under s.13;(2) that the decision to which the certificate in this case related under s.12 was to the quashing of the refusal to provide free transport as recorded in the Order of the Court of 29June 2004 (quoted in para 15 above); and(3) thus that prima facie no appeal lies to the Court of Appeal from that decision.[28]However, he argued that the 1969 Act does not expressly contemplate the circumstances where the House of Lords has granted permission to appeal on one issue but refused on another. He suggested that the design and purpose of the statutory mechanism once a leapfrog certificate had been granted was that an appellant should have his appeal heard, either by the House of Lords (if the appellant applied to the House of Lords and was granted permission), or by the Court of Appeal (if the appellant did not seek permission to appeal to the House of Lords or was refused permission). If, Mr Giffin submitted, by the process of hiving off an issue under a leapfrog certificate the appellant is deprived of any appeal at all on a particular issue, then the appellant is worse off than he would have been had no certificate been granted, or indeed if the House of Lords had refused permission altogether, which, he suggested, would be an anomaly.[29]He further submitted that there should be a “strong presumption that except by specific provision the legislature will not exclude a right of appeal as of right or with leave where such a right is ordinarily available” (see Lord Steyn in R v Emmett [1998] AC773 HL at 781-782).[30]So, he submitted, that to avoid the anomaly and the injustice the word ‘decision’ should not be construed as referring to the “judgment or order” of the court but should be construed as referring to a decision on a particular issue. He pointed out that in s.15(4) a distinction is drawn between “decision” and “order”, and he suggested that assisted his argument. This argument became further refined in the course of submissions. Mr Giffin would, I think, accept that the House of Lords must have power to grant permission subject to terms as to the arguments that it was prepared to hear. His argument could not go so far as to suggest that in all circumstances in which the House of Lords identified grounds or reasons on which it was not prepared to hear argument, there would then be a decision which an appellant, who has utilised the leapfrog system, could take to the Court of Appeal based on those arguments.[31]His argument, as refined, came, I think, to this. If it had been appreciated by the appellant that far from the respondents consenting to the leapfrog system, they intended to suggest that at least one or other of the issues should be argued in the Court of Appeal, consideration could have been given to seeking declarations from Collins J. In the circumstances of this case, Mr Giffin suggested it would have been natural and appropriate to reflect by declarations that there were in reality two decisions leading to a third decision to quash. For the respondents to succeed before Collins J they needed to succeed on issue 1. If they succeeded on issue 1, the response of the appellant was to raise issue 2. Only if the respondents were successful on both issues would the decision to refuse free transport have been quashed. So, Mr Giffin argued, it would have been perfectly appropriate for Collins J to have granted a declaration reflecting the effect of his decisions on issue 1 and a declaration reflecting his finding on issue 2, resulting in a final order resulting in the quashing of the decision as set out in paragraph 1 of the present order.[32]Mr Giffin submitted that the House of Lords should be taken to have treated Collins J as having made declarations on issue 1 and issue 2. The House of Lords should be taken to have recognised that the certificate related to two decisions and on that basis Mr Giffin submitted that s.13(2)(a) should be applied so as to hold that(1) leave had only been granted under section 13 by reference to that part of the certificate which related to issue 2; and(2) thus the prohibition on appealing to the Court of Appeal only related to that decision of Collins J insofar as the certificate related to that decision.

Respondents’ Submissions

[33]Mr Nicol QC suggested that the starting point for consideration of the jurisdiction issue was in fact s.16(1) of the Supreme Court Act 1981 (the 1981 Act). By that section it is provided that:- “Subject as otherwise provided by this or any other Act (and in particular to the provision in section 13(2)(a) of the Administration of Justice Act 1969, excluding appeals to the Court of Appeal in cases where leave to appeal from the High Court directly to the House of Lords is granted under part II of that Act) . . . The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court.”[34]He submitted that the only ‘judgment or order’ made by Collins J in the present case is that set out at paragraph 12 above, i.e. the order at page 18 of the appeal bundle. He submitted that there is a well-known principle that an appeal is against orders and not reasons and referred us to para 52.0.13, vol 1 p1452 of the White Book 2005. He submitted that the matter can be tested by supposing that Collins J had decided the linkage issue in favour of the respondent, but the second issue before him in favour of the appellant. On that basis, Collins J would have ordered that the application for judicial review would be dismissed. Mr Nicol submitted that the appellant then would have been unable to appeal the judge’s decision on the linkage issue, since it would have had no complaint on the judge’s order. See Lake v Lake [1955] P336 CA..[35]Strictly, of course, he would accept that s.16(1) does not preclude an appeal by the appellant in this case because the appellant is seeking to challenge the order made by Collins J even as defined by Mr Nicol. But he submitted that s.16(1) provided the background to the way in which sections 12 and 13 should be construed. He submitted that it is clear that in those sections the ‘decision’ means the ‘judgment’ or ‘order’. He submitted the distinction drawn in s.15(4) between ‘decision’ and ‘order’ was understandable in the context of that subsection, dealing as it does with contempt, and was not a pointer to the word ‘decision’ meaning anything other than the ‘judgment or order’ in sections 12 and 13. Indeed, he submitted, that the contrast in s.12(3) of the 1969 Act between use of the word ‘judgment’ in subsections (a) and (b) where that word clearly meant ‘reasoned judgment’ rather than ‘final decision’, and the use of the word ‘decision’ elsewhere, demonstrated that ‘decision’ was equivalent to ‘judgment or order’ as used in s.16(1) of the 1981 Act.[36]He did accept however, that the position might have been different if Collins J had granted declarations in relation to issue 1 and issue 2 and granted certificates separately for each. But, he submitted, Collins J was never asked to make declarations or certify separately and the court is not in a position to treat the order made by Collins J as if he had made declarations, and/or as if he had certified separately.

Discussion and Conclusion

[37]It seems to me that the policy lying behind the leapfrog provisions was to cut out one layer of appeals. Any construction that left part of an appeal in the Court of Appeal and part in the House of Lords would not fulfil that purpose. Mr Giffin would have to accept that on his construction he could have continued to pursue his appeal to the House of Lords on issue 2 and at the same time pursued an appeal on issue 1 in the Court of Appeal, both being concerned in the end with the question whether the decision of the appellant should be quashed. That, as it seems to me, would be a strange result.[38]It might well have been permissible for the judge to grant declarations in this instance, but it is most unlikely that he would in fact have granted a certificate on each at all if there had been the contest as to whether one or other of the issues should go to the Court of Appeal before going to the House of Lords. But the real point is that he did not grant declarations and it does not seem to me open to this court to construe his order as if he had, or to construe his certification as in effect two certificates. In addition it is not possible to construe the way the House of Lords dealt with permission as having treated Collins J as having given ‘decisions’ on each issue and as having certified separately for each. Finally it is certainly not open to this court to construe the words ‘decision’ as including simply ‘grounds’ or ‘reasons’.[39]In the circumstances, although I feel some sympathy with the appellant in this case, that sympathy flows from the respondents’ attitude varying as between when they consented to the leapfrog procedure and when they got to the House of Lords. Even that said, having obtained a certificate and having pursued an application for permission to appeal to the House of Lords so as to miss out one layer of appeal, it seems to me that the appellant was always at risk that the House of Lords might decide to allow argument by reference to one ground alone. Section 13(2)(a) as it seems to me was intended to preclude an appeal taking place at two levels at the same time, and in making their application to the House of Lords the appellant was placing its fate in the hands of the House of Lords. It is only consistent with an interpretation that precludes appeals taking place at two levels to hold that a refusal by the House of Lords to hear argument on one aspect will lead to a loss of a right to appeal that aspect. In my view this is not to construe the provisions as taking away a right of appeal, it is to construe the provisions so as to provide the opportunity to miss out one layer of appeal. Once an appellant has elected to go for one layer, he will be bound by the decision of that layer as to what arguments can be run.[40]I would accordingly dismiss the appeal on the basis that the Court of Appeal has no jurisdiction, and on that basis the point whether permission to appeal to the Court of Appeal was granted does not arise. But having regard to the views expressed by Maurice Kay LJ and Sir Christopher Staughton, I should say that if I had been of their view I would also agree with Maurice Kay LJ on his construction of the judge’s order and hold for the reasons he gives that the judge had granted permission to appeal. Lord Justice Maurice Kay :[41]As the facts, the statutory provisions and the rival submissions have been set out with such clarity by Waller LJ, I can be brief in giving the reasons why I respectfully disagree with his conclusion. I say at once that I am unattracted by the suggestion that we should view the case as if Collins J had made separate declarations in relation to issue 1 and issue 2. I agree that that would be an artificial basis upon which to decide the important question which now arises. It should not turn on anything as adventitious as that.[42]The crucial provision is section 13(2) of the 1969 Act and in particular the words “… and where leave is granted under this section – (a)no appeal from the decision of the judge to which the certificate relates shall lie to the Court of Appeal … ”[43]I am unpersuaded that, in this context, the word “decision” can only mean ‘judgment or order’ in the sense in which those words are used in section 16(1) of the Supreme Court Act 1981.[44]It seems unlikely that in 1969 Parliament contemplated the possibility that a certificate under section 12(1) might relate to two issues or grounds in respect of which the House of Lords might grant leave for one but refuse it for the other. We are told that the researches of counsel have failed to unearth a previous example of such a mixed outcome. However, whether as a result of changing practice or increasing complexity, it seems to me that such a situation is likely to recur. For the moment, I shall assume that Collins J granted permission to appeal to the Court of Appeal in respect of both issues. On such an assumption he must have considered that in respect of each there was a real prospect of success or some other compelling reason justifying the grant of permission. It would seem to me to be surprising if, in such circumstances, a partial grant of leave by the House of Lords were to exclude all possibility of the further pursuit of another ground of appeal which had been considered to have a real prospect of success. To take an example, the House of Lords may grant leave in relation to a ground which plainly involves a matter of general public importance and which calls for an authoritative decision at that level at the earliest opportunity. The second ground may be highly meritorious but case specific and not of general public importance. I would consider it regrettable if the matter could not proceed first by way of the determination of the matter of general public importance in the House of Lords and, thereafter, and if still relevant, by way of the determination of the second ground in the Court of Appeal. I am untroubled by the theoretical possibility that the two appeals might be proceeding in two places at the same time. It would be perfectly possible, for example, for the Court of Appeal to stay the appeal on the second ground pending the resolution of the appeal on the first ground in the House of Lords.[45]These considerations dispose me to adopt a broad construction of section 13(2) if that is at all possible. Whilst I accept that the context is not directly in point, I draw some support from the statement of Lord Steyn in R v Emmett [1998] AC 773, 781-782, that “there is a strong presumption that except by specific provision the legislature will not exclude a right of appeal as of right or with leave where such a right is ordinarily available.”[46]Mr Giffin also seeks to derive further support for this approach from R (Zenovics) v Secretary of State for the Home Department [2002] EWCA Civ 273. Again, the situation is not wholly analogous, not least because one of the considerations in Zenovics was that the narrower construction would have implications relating to the international obligations of the United Kingdom under the Refugee Convention. Nevertheless, it does illustrate a reluctance on the part of the courts to acquiesce in the loss of a right of appeal which would have been the result of a stricter, less purposive construction.[47]In my judgment, the conclusion to which Waller LJ has come with, it seems, a measure of reluctance, is not one which is forced upon us by the statutory language. The 1969 Act contains no definition of “decision”. Nor does the Act expressly import the words “order or judgment” from sections 3 and 4 of the Appellate Jurisdiction Act 1876. Moreover, I find some significance in the fact that section 15(4) of the 1969 Act uses the words ‘decision’ and ‘order’ differentially. The context is a narrow and exclusionary one (contempt of court) but the language at least justifies the observation that the assimilation of “decision” with “judgment or order” was probably not in the minds of the draftsman or Parliament.[48]In the present case, it is common ground that if the appellant local authority were to succeed on issue 1 or issue 2, the quashing order made by Collins J would have to be set aside. Thus, at no stage could it have been said that the pursuit of an appeal on issue 1 would have been wholly academic. If the appeal to the House of Lords on issue 2 had been pursued and had been successful, I can conceive of no circumstances in which any stay on the appeal to the Court of Appeal on issue 1 would have been lifted. It seems to me that the ultimate purpose of section 13(2)(a) is to ensure that there is no further litigation in the Court of Appeal of a matter for which leave has been granted for an appeal to the House of Lords. Consequently, I would construe the words “decision of the judge to which the certificate relates” as limited to a decision or part of a decision in respect of which the House of Lords has granted leave for an appeal. I would be content to leave it to the Court of Appeal, by means of the procedural weapons at its disposal, to ensure that untimely or pointless appeals to it are not further pursued. Accordingly, I would allow the present appeal of the appellant authority on the first of the four issues identified by Waller LJ.[49]The next question is whether the assumption that Collins J granted permission to appeal on the ground in respect of which the House of Lords later refused leave as well as on the ground in respect of which it granted leave. Mr Nicol took us to the transcript of the discussion which followed the judgment of Collins J. He submits that it is susceptible to the interpretation that Collins J was granting contingent permission to appeal to the Court of Appeal only in relation to the second issue and not in relation to the first. Perhaps it is susceptible to that interpretation. However in my judgment, when that discussion is considered by itself and, even more so, when it is considered in conjunction with the order and all the surrounding circumstances, the better view is that Collins J did indeed grant contingent permission in relation to both issues. I would therefore hold that the appellant local authority has permission to pursue its appeal to this Court on the “linkage issue”. In my judgment, it is now appropriate for that appeal to be heard. Nothing I have said in the context of considering the jurisdiction issue should be taken as indicating any view as to the merit of this appeal.

Sir Christopher Staughton:

[50]It is said that the County Council has no right to appeal to this Court following the proceedings under the Administration of Justice Act 1969. The relevant provisions for this purpose are as follows: Leave to appeal to House of Lords 13.-(1) Where in any proceedings the judge grants a certificate under section 12 of this Act, then; at any time within one month from the date on which that certificate is granted or such extended time as in any particular case the House of Lords may allow, any of the parties to the proceedings may make an application to the House of Lords under this section. (2) Subject to the following provisions of this section, if on such an application it appears to the House of Lords to be expedient to do so, the House may grant leave for an appeal to be brought directly to the House; and where leave is granted under this section –(a) no appeal from the decision of the judge to which the certificate relates shall lie to the Court of Appeal, but(b) an appeal shall lie from that decision to the House of Lords. (3) Applications under this section shall be determined without a hearing.[51]What happened on the application was that their Lordships granted leave for an appeal to be brought directly to the House on the second issue, as follows Issue 2 – On the proper construction of section 444(4)(b)(iii) of the Education Act 1996, is it possible for a local education authority to have made suitable arrangements for a child to become a registered pupil at a school, if that school would not be educationally suitable for the child concerned – Permission for leave to appeal on issue 2 has been given on the terms that the petitioners do pay the respondents costs before this House in any event.[52]Leave was refused for the other two issues: Issue 1 – Is a local education authority always bound to conclude that it is necessary to provide free transport to a pupil under Section 509(1) of the Education Act 1996 if that pupil’s parents would otherwise have a defence under Section 444(4) of the 1996 Act to a prosecution under Section 444, in the event of the pupil failing to attend regularly at school – Permission to appeal on issue 1 is refused because the petition does not raise an arguable point of law of general public importance which ought to be considered by the House at this time, bearing in mind that the question at issue has been regarded as settled for very many years. . . . . Issue 3 – The test of the school’s suitability for the purposes of Section 444(4)(b)(iii) – Permission is refused to appeal on issue 3 because the petitioners did not ask for it.[53]In the event the Council did not proceed with issue 2 in the House of Lords, and abandoned it. It may be that the Council took the view that Mr Justice Collins correctly decided that issue.[54]The Council thereupon sought to pursue an appeal on issue (1) to this Court. The judge’s order at first instance provided:
“3. In the event that leave to appeal is not granted, the Defendants do have permission to appeal to the Court of Appeal.”
[55]The argument for the Respondents is that “the decision of the judge” in Section 13(2)(a), and “the decision” in 13(2)(b) can only refer to one, undivided, decision, which must be the Order of the judge that the refusal to make arrangements for the provision of transport be quashed. The contrary argument is that the judge decided two issues in reaching his conclusion, that is to say the first and second issues as set out above; if either of them is reversed, the Council should succeed. The Council has abandoned its attempt to reverse the judge’s conclusion on issue 2, but seeks to achieve a different result on the first issue.[56]I agree that Section 13(2) of the statute, considered on its own with no other guidance, appears to provide that where any leave is granted under the section, then an appeal lies from the decision to the House of Lords, and no appeal lies to the Court of Appeal. But another possible reading is that an appeal shall lie on some issues to the House of Lords and shall lie on another issue or issues to the Court of Appeal, if so ordered. It may be that in 1969 it was not usual for leave to appeal to the House of Lords – or for that matter to the Court of Appeal – to be granted in part and refused in part. But it is by no means uncommon today. The statute of 1969 is to be construed in the circumstances of today, so as to allow for the possibility of a partial grant of leave. I would readily apply that interpretation.[57]It is plain, if I may say so, that the latter interpretation was adopted by the House of Lords. Otherwise they would have been depriving the Council of a right to appeal to the Court of Appeal, for which the judge had granted leave in the event that leave to appeal to the House of Lords was not granted; and they would have done so without a hearing.[58]A second argument on behalf of the Respondents is that the judgment of Collins J. made only one order, that the refusal to make arrangements for the provision of transport be quashed. It is said that the order could not be severed so that in part it was to be considered by the House of Lords and the remainder by Court of Appeal. It was said for the Council that such a process could be achieved if the judge had made two declarations, one about the first issue and the other about the second. In point of form the judge did not do that. But in fact he stated quite plainly what he had decided on each of those two issues.[59]I would not attach any importance to the difference between a formal declaration on the one hand, and a mere statement of the judge’s conclusion on the other, at any rate in this context. Each of the two issues was essential to success of the Respondents, as the judge clearly showed. The authority on which I would rely is what Lord Denning said in Harkness v. Bell’s Asbestos and Engineering Ltd(1967) 2 QB 729 at p.736:
“It can at last be asserted that it is not possible for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation.”
Even a Council can be an honest litigant.[60]I would hold that the Council is not prevented from bringing this appeal in this Court, by the provisions in the 1969 Act.[61]So far as permission to appeal is concerned, for the reasons given by Maurice Kay LJ, I agree that the judge granted permission.

Cited in 3 later judgments