Lane & Ors v Esdaile & Ors [1891] UKHL 4
LORD HALSBURY L.C. , LORD BRAMWELL , LORD HERSCHELL , LORD MACNAGHTEN , LORD FIELD and LORD HANNEN.H. James Q.C. ( Ashton Cross and Frederick Low with him) instructed by (J. E. Turner) for the appellants Byrne Q.C. and H. B. Howard instructed by (Winter & Co.) for the respondentsMy Lords,I concur. I think that according to the true construction of the Judicature Act and Orders, the Court of Appeal are constituted the sole and final judges of the question whether an appeal to them should or should not be admitted when the proposed appellant has allowed the prescribed period to elapse, and therefore that there can be no appeal from the grant or refusal of that indulgence. LORD FIELD: - My Lords, I am also of opinion that this petition of appeal should be dismissed. It seems to me that the rules have given to the litigant ample time for the purpose of deciding whether he shall appeal or not; in the case of an interlocutory order twenty-one days is the limit, in the case of a final judgment a year. It seems to me that the policy of the Legislature was that after that time, when the litigant had lost his position by reason of his not appealing within the time limited for that purpose, he might be restored to that position, but that in carrying out that policy the Legislature intended that the matter should not go beyond the Court of Appeal, and therefore they have used the words that leave is to be given - that is the leave of the Court of Appeal. It seems to me that if your Lordships were to say now “We will give leave” and the Court of Appeal must enforce that, it would be imposing upon them the duty of giving a leave, as their leave, which they in their own judgment, think ought not to be given. LORD HANNEN: - My Lords, I concur, and I have nothing to add to the reasons which have been given by the noble and learned Lords who have preceded me.Appeal dismissed as incompetent, with costs.
Cited in 23 later judgments
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