Sarfraz 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 his misconduct proved and he had been suspended from the Medical register for twelve months.
Held: The court first considered whether there existed a right of appeal against a decision of the Upper Tribunal. There is no jurisdiction in the Court of Appeal to give permission to appeal against the refusal by the UT of permission to appeal to itself.
The essence of the decision in Lane v Esdaile: ‘ is that, in the absence of express statutory language to the contrary, a provision giving a court the power to grant or refuse permission to appeal should be construed as not extending to an appeal against a refusal of permission to appeal. This is not because the word used to describe the decision in respect of which permission to appeal is sought bears a special or narrow meaning. It is because . . the decision which it is sought to appeal is ‘from the very nature of the thing, final and conclusive and is without appeal, unless an appeal from it is expressly given’
The court gave reasons for rejecting the suggestion that a right of appeal existed: ‘ in the absence of clear contrary statutory language, the Lane v Esdaile principle applies to any provision which requires permission as a condition of the right to appeal. The rationale which underlies the principle applies with equal force to any provision which imposes a requirement of permission to appeal. The use of broad words such as ‘the right to appeal’ and ‘decision’ is not sufficient to indicate a Parliamentary intention to disapply the principle. . . there is no support in the authorities or justification as a matter of principle for holding that the Lane v Esdaile principle should only apply to decisions by tribunals of law. . . the fact that Parliament has provided by section 13(8)(c) of the TCEA that a decision of the UT on an application for permission to appeal against a decision of the FTT is an ‘excluded’ decision is not sufficient to indicate that it necessarily intended that the Lane v Esdaile principle should be disapplied in relation to decisions of other bodies. The principle is clear: if it is to be disapplied, clear express language is required. ‘

Lord Dyson MR, Kitchin LJ
[2015] EWCA Civ 544
The Tribunals, Courts and Enforcement Act 2007 11
England and Wales
CitedLane 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 . .
CitedKemper 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 . .
CitedSinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
CitedThe Wellcome Trust Ltd v 19-22 Onslow Gardens Freehold CA 5-Jul-2012
The Court considered whether it had jurisdiction to grant permission to appeal against a decision of the President of the Upper Tribunal (Lands Chamber) refusing permission to appeal to the UT against a decision of the Leasehold Valuation Tribunal. . .
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 . .
CitedCampbell v The Queen PC 3-Nov-2010
(Court of Appeal of Jamaica) The defendant had been convicted of murder and his applications for leave to appeal against conviction were refused. He applied to the Privy Council for special leave to appeal from a decision of the Court of Appeal of . .

Lists of cited by and citing cases may be incomplete.

Administrative, Litigation Practice

Updated: 01 November 2021; Ref: scu.547073