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 judge, considering that he had no further jurisdiction in the matter, refused bail pending an appeal.
Held: If on the adjourned hearing of the application for leave to apply before the High Court the judge had dismissed the application, there could be no appeal to the Court of Appeal. There would be a power to renew that application to that court, but no appeal. The Court affirmed the jurisdiction of a High Court judge to grant bail, as a measure of interim relief, when granting leave to apply for judicial review.
Sir John Donaldson MR said: ‘If I could come back to the general question of jurisdiction, in my judgment bail is to be regarded in civil proceedings – as it is in criminal proceedings – as ancillary to some other proceeding. It is not possible, so far as I know, to apply to any court for bail in vacuo. It is essentially an ancillary form of relief. The problems which have arisen really all stem from the need to find an underlying substantive proceeding to which bail would be ancillary . . I will now try and look at the problem overall, taking, first, the High Court. In my judgment you cannot apply to the High Court for bail unless the High Court is seised of some sort of proceeding. It may be seised of an application for leave to apply for judicial review or it may be seised of the substantive application. So long as it is seised of either of those applications, you can apply to the High Court and the court can grant or refuse bail. From the order granting or refusing bail an appeal will lie to this court.’
. . And ‘We own to having some doubts as to whether there is room for an inherent jurisdiction to grant bail in relation to a civil appeal in judicial review proceedings when Parliament has given . . the Secretary of State the power to detain and the substance of the complaint is the exercise of that power. But in the light of the authorities we accept that the High Court has the power in judicial review proceedings to make ancillary orders temporarily releasing an applicant from detention and that on an appeal in those proceedings this court by virtue of section 15(3) of the 1981 Act can make the like order. In our judgment this court is exercising an original jurisdiction and it is not judicially reviewing the decision by the Secretary of State.’
. . And ‘Clearly we would grant bail ancillary to or as a part of proceedings for habeas corpus.’
Judges:
Sir John Donaldson MR, Croom-Johnson and Bingham LJJ
Citations:
[1988] 1 QB 398, [1987] 2 All ER 823
Jurisdiction:
England and Wales
Citing:
Cited – Dhillon 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 . .
Cited – Lane 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 . .
Cited by:
Cited – 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 . .
Cited – Martin Corey, Re for Judicial Review SC 4-Dec-2013
The appellant challenged his recall to prison from licence. He had been convicted in 1973 of the murder of two police officers. He had remained at liberty for 18 years, befire his licence was revoked on the basis of confidential iintelligence . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 23 March 2022; Ref: scu.182912