Kemper Reinsurance Company v The Minister of Finance and others: PC 5 May 1998

(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature of the ratio decidendi of Lane v. Esdaile as explained by the Court of Appeal in Stevenson’s case, the important differences between applications for leave to appeal and applications for leave to apply for judicial review and the long-standing practice of the English Court of Appeal to entertain such appeals have persuaded their Lordships that whatever may have been the reasoning in In re Poh, it is not applicable to this case.’ and ‘Their Lordships consider that the principle in Lane v. Esdaile [1891] AC 210, as explained in In re Housing of the Working Classes Act, 1890, Ex parte Stevenson [1892] 1 QB 609, is that a provision requiring the leave of a court to appeal will by necessary intendment exclude an appeal against the grant or refusal of leave, notwithstanding the general language of a statutory right of appeal against decisions of that court. This construction is based upon the ‘nature of the thing’ and the absurdity of allowing an appeal against a decision under a provision designed to limit the right of appeal. This absurdity is greatest in a case such as Lane v Esdaile, in which the appeal is brought to or from the very tribunal to which it is desired to appeal on the merits. As Lord Halsbury pointed out, an appeal against the refusal of leave would involve the higher court in doing the very thing which the provision was designed to prevent, namely, having to examine the merits of the decision appealed against. The Stevenson case generalises the proposition to cover all cases in which leave to appeal is required, even if the tribunal before which the applicant seeks a rehearing on the merits (in that case, a jury) is not the same as that to or from which he seeks to appeal against the refusal of leave. But the emphasis which the Court of Appeal in that case placed upon characterising the hearing before the jury as an appeal shows that the judges would not necessarily have been willing to state the principle any more widely and to include cases in which leave is required to do something other than appeal. For example, it has never been suggested that the provisions of the rules which require the leave of the court to serve process out of the jurisdiction impliedly exclude the right of appeal against the refusal of such leave.’ and ‘The question is therefore whether the requirement of leave to issue a summons for an order of certiorari is sufficiently analogous to a requirement of leave to appeal to attract the reasoning in Lane v. Esdaile and the Stevenson case and enable a court to say that an appeal from the grant or refusal of such leave would so frustrate the policy of requiring leave as to show, by necessary intendment and ‘the nature of the thing,’ that such orders were excluded from the general right of appeal in section 12 of the Court of Appeal Act 1964. For this purpose it is necessary for their Lordships to consider what the policy of the leave requirement is.’
Noting the difference from judicial review: ‘In principle, however, judicial review is quite different from an appeal. It is concerned with the legality rather than the merits of the decision, with the jurisdiction of the decision-maker and the fairness of the decision-making process rather than whether the decision was correct. In the case of a restriction on the right of appeal, the policy is to limit the number of times which a litigant may require the same question to be decided. The court is specifically given power to decide that a decision on a particular question should be final. There is obviously a strong case for saying that in the absence of express contrary language, such a decision should itself be final. But judicial review seldom involves deciding a question which someone else has already decided. In many cases, the decision-maker will not have addressed his mind to the question at all. The application for leave may be the first time that the issue of the legality of the decision is raised and their Lordships think it is by no means obvious that a refusal of leave to challenge its legality should be final. The law reports reveal a number of important points of administrative law which have been decided by the Court of Appeal or House of Lords in cases in which leave was refused at first instance.
In principle, therefore, their Lordships do not think it possible to say that the very nature of the leave requirement for an order of certiorari excludes, or makes absurd, the possibility of an appeal. But unless such a conclusion can be drawn, their Lordships consider it very difficult to find the necessary intendment restricting the general right of appeal conferred by section 12. It may be appropriate, as a matter of policy, to restrict that right of appeal, but their Lordships consider that this is a matter for legislation rather than judicial interpretation.’
Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hoffmann, Lord Clyde, Lord Hutton
Times 18-May-1998, [2000] 1 AC 1, [1998] UKPC 22
England and Wales
CitedPillai v Comptroller of Income Tax PC 1970
The role of the Privy Council is purely appellate, and the court will not rule on points of law which had not been raised in the court from which the appeal lay. . .
ExplainedLane v Esdaile HL 5-May-1891
The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The . .
CitedIn re Housing of the Working Classes Act 1890, Ex parte Stevenson CA 1892
A party had applied to a judge for what in effect amounted to leave to appeal and had been refused.
Held: Wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature . .
CitedO’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
CitedPractice Direction of 2nd November 1982 CA 2-Nov-1982
A refusal in a non-criminal cause or matter by a Divisional Court of the Queen’s Bench Division or by a single judge to grant leave to apply for judicial review is appealable to the Court of Appeal. . .
CitedDhillon v Secretary of State for the Home Department CACD 1988
The court considered the jurisdiction of the Court of Appeal to hear certain appeals, saying that ‘Lane v. Esdaile is of general application and provides that where leave to bring proceedings is required it is not possible to appeal against a . .
CitedRegina v Secretary of State for the Home Department, Ex parte Turkoglu CA 1987
The applicant had been granted bail by a High Court judge when he was given leave to apply for judicial review of the decision refusing him leave to enter the United Kingdom. His application for judicial review was subsequently dismissed and the . .
CitedBegum v Secretary of State for the Home Department CA 1990
The court was willing to contemplate the possibility of an appeal by an applicant whose leave granted ex parte had been subsequently discharged. . .
CitedDoorga v Secretary of State for the Home Department CA 1990
The court contemplated the possibility of an appeal by an applicant whose leave granted ex parte had been subsequently discharged. . .
CitedRickards v Rickards CA 20-Jun-1989
What Lane v. Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant nor refusal of leave is an appealable decision. The Court of Appeal could . .
CitedGeogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .
CitedRegina v Special Educational Needs Tribunal Ex Parte South Glamorgan County Council CA 12-Dec-1995
The Court of Appeal entertained an appeal by a respondent against the judge’s refusal to discharge leave granted ex parte. Challenges to decisions of tribunal should be by way of appeal not Judicial Review. . .
CitedIn re Racal Communications Ltd; In Re a Company HL 3-Jul-1980
The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over . .
Distinguished.In re Poh HL 1983
The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords.
Cited by:
CitedRegina v London Borough of Hammersmith and Fulham And Others, ex parte Burkett and Another HL 23-May-2002
The applicant sought judicial review of the respondent’s grant of planning permission for a development which would affect her. The authority objected that the application was made after three months after their decision, and so leave should not be . .
CitedRegina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
CitedWalsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
CitedSarfraz v Disclosure and Barring Service CA 22-May-2015
The claimant appealed against the refusal of the defendant to remove his name from the list of those barred from working with children. He had been a GP. Though not priosecuted for any criminal offence the Professional Conduct Committee had found . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.159303