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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Pelling v Families Need Fathers Ltd [2002] EWCA Civ 699 (22 April 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/699.html
Cite as: [2002] EWCA Civ 699

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Neutral Citation Number: [2002] EWCA Civ 699
A3/2002/0581

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(MR JUSTICE LAWRENCE COLLINS)

Royal Courts of Justice
Strand
London WC2

Monday, 22nd April 2002

B e f o r e :

LORD JUSTICE SCHIEMANN
____________________

MICHAEL JOHN PELLING Applicant
- v -
FAMILIES NEED FATHERS LTD Defendant

____________________

(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

The Applicant appeared in person
The Defendant did not attend and was unrepresented

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Monday, 22nd April 2002

  1. LORD JUSTICE SCHIEMANN: Dr Pelling seeks permission to appeal from a judgment of Collins J in relation to a matter which concerns access to company records. The basis of his case is a very simple one. It is the provisions of section 356 of the Companies Act 1985, which provides that the register and index of members of a company shall be open to the inspection of any member of the company without charge; and the provision in the same section that any member of the company may require a copy of the register on payment of such fee as may be prescribed. He drew attention to the provision of subsection (6) that in the case of any refusal or default to supply a copy or inspection the court may by order compel an immediate inspection of the register and direct that copies required be sent to the persons requiring them.
  2. What has happened in substance is this. Dr Pelling sought to inspect a particular register, and he failed to obtain an order from the court to allow him to do so, the court ruling that it had a discretion in the matter and for reasons which seemed good to the court it refused to exercise that discretion in his favour. That decision was upheld by the Court of Appeal, and Dr Pelling, who is very assiduous in his research, sought in a long and well argued petition to their Lordship's House for permission to appeal in relation to the furnishing of copies, which was the issue in the first case. That permission was refused. He then applied this time for an order that he be permitted to inspect. That order was refused by Collins J on the giving of certain undertakings by the company. The details of it are set out in Collins J's judgment. It is right to say that Collins J was clearly influenced in his decision by the fact that nearly, but not quite the same point, had been litigated previously to the Court of Appeal and that the House of Lords had refused permission, and he took it that he was bound by the Court of Appeal decision, as indeed he was.
  3. Before me Dr Pelling takes a number of points, but his chief points are these. The first one relates to a provision in the Bill of Rights. He says that in part, the Court of Appeal in its previous decision has departed from the Bill of Rights and in those circumstances a future court should not be bound by the earlier decision of the Court of Appeal because Statute trumps courts' decisions. I do not think he put it that way but I think that is the substance of the point he was making. The Bill of Rights, which I confess I have not looked at for some time, was placed before the Lord's Spiritual Temporal and the Commons in, I think, 1688 and, after various recitals of the terrible things done, as Parliament then saw it, by the late King James II by the assistance, as they put it of divers evil councillors, judges and ministers employed by him, they were concerned about the fact, as is well known to historians, that various Acts of Parliament were effectively not being enforced by the judges, and they enacted that the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal, and that the pretended power of dispensing with laws or the execution of laws by regal authority as it has been assumed and exercised of late is illegal.
  4. Now, we are clearly not concerned with the dispensing of laws as it has been assumed and exercised of late in a very direct sense, though no doubt Dr Pelling would seek to argue by analogy. But he makes the perfectly fair and totally understandable point that here we have an Act of Parliament which, on the face of it, gives someone the right to see a register and to have copies of it, and the effect of the decision of the Court of Appeal is that it is not an absolute right, and he has been deprived of the exercise of any such right. I understand that point very well. It is a point in substance that he made before the Court of Appeal and in his petition in the House of Lords; and although he did not expressly refer to the Bill of Rights it is of course inbred in every judge that Statute, in principle, trumps discretion, and you can have situations where the court has no discretion but to do that which Parliament has asked.
  5. However, for reasons set out in the previous Court of Appeal judgment, they took the view that in this case they did have a discretion and they would exercise it against Dr Pelling. Dr Pelling sought to appeal to the House of Lords. They no doubt read what he had to say and decided that this was not an appropriate case for him to be allowed to press a fundamental constitutional point, as I fully accept that it is. That is his first and main ground.
  6. His second ground is that he says the Court of Appeal reached its judgment in part by looking at authorities which claimed that the Court of Appeal did have discretion and that those authorities had been drawn to the attention of the court by a judicial assistant, and that he, Dr Pelling, did not have a fair opportunity of commenting on those authorities and therefore (he says) that there was a breach natural justice. He accepts that he was given a written copy of the proposed judgment of the court before it was handed down, but he says (and I fully understand that) he did not regard it as appropriate, although he addressed the court at some length at the handing down, to address them on this particular point because there were other and more pressing matters for him to do. He says that the court of Appeal has jurisdiction to set aside its own judgments where it is convinced that they had been obtained in breach of natural justice, that this is such a case, the previous decision of the Court of Appeal should be set aside, then he will be able to argue the point with a clear field without the problems of past authorities. He submits that he has a reasonable prospect of success and in those circumstances permission ought to be granted. Then there are various other points which are raised in the notice of appeal.
  7. I understand the force of what Dr Pelling says. The points he raised are ones of substantial general importance potentially. The question is whether this is a case in which they ought to be raised. Clearly this court thought that it had a discretion. I am not persuaded that it has no discretion. Indeed, as I understood it, it was actually conceded before the court below that it had discretion by Dr Pelling at an earlier stage, but I may be wrong as to that; that is how I read it. The court has a discretion, or so it is held, which is one which it would only exercise in very restricted circumstances. I am not persuaded that if I were to give Dr Pelling permission to go to this court he has any real prospect of overturning that ruling, notwithstanding the provision of the Bill of Rights. Once one accepts that the court has a discretion in the matter then that is a discretion to be exercised by the judge.
  8. I see no prospect whatever of the court in the circumstances of the present case overruling the exercise of discretion by the judge and in those circumstances permission to appeal is refused.
  9. (Application refused; no order for costs).


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