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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1661,  WLR 3773,  1 WLR 3773
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ON APPEAL FROM THE COURT OF PROTECTION
THE HONOURABLE MR. JUSTICE PETER JACKSON
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LADY JUSTICE GLOSTER
AA (By his litigation friend, The Official Solicitor)
KNOWSLEY METROPOLITAN BOROUGH COUNCIL
|AA (By his litigation friend, The Official Solicitor)
|KNOWSLEY METROPOLITAN BOROUGH COUNCIL
Mr Richard Gordon QC and Mr Adam Fullwood (instructed by Peter Edwards Law Solicitors) for the 1st Respondent
Ms Jane Cross and Mr Jonathan Butler (instructed by Knowsley Metropolitan Borough Council) for the 2nd Respondent
Hearing dates: Thursday 3rd October 2013
Friday 4th October 2013
Crown Copyright ©
Lady Justice Gloster :
"In addition, this is an appeal against the refusal of Jackson J to grant permission to appeal. If these proceedings are governed by Access to Justice Act 1999, section 54(4) and CPR PD 52 para 4.8 (and see White Book notes para 52.3.8) then there is no appeal to the Court of Appeal from a refusal of permission by the lower appellate court. These are proceedings in the Court of Protection and COP Rules r 181(1) provides for an appeal from a decision of a judge nominated by MCA, s 46(2) [which includes Jackson J sitting in the COP] to lie to the Court of Appeal. It is a moot point whether, in contrast to ordinary civil proceedings, there is scope for appealing a refusal of permission to appeal in COP cases. This point also justifies consideration by the full court, but means that permission to appeal will not be granted at this stage."
Facts relevant for the purposes of the jurisdictional issue
i) that there had been no material change since the last application was determined on 6 June 2011 and that the Appellant was running the 'same argument' as before;
ii) an application under section 21A was not an appropriate means of challenging care arrangements, at least not without a review under Part 8(18);
iii) section 21A proceedings represented a 'significant burden on both the LSC and the court service and should only be brought if there is merit in so doing and it is proportionate', which was not the case in relation to the Appellant's application;
iv) the Official Solicitor should be substituted as applicant instead of the Appellant so that the application could be withdrawn.
i) allowed the Official Solicitor's application for AA, represented by the Official Solicitor, to be substituted as applicant in place of the Appellant;
ii) made the Appellant second respondent to the proceedings;
iii) granted permission to the Official Solicitor, pursuant to his conduct of the proceedings, to withdraw the section 21A application.
i) Part 8 of Schedule A1 was a more suitable mechanism by which the Appellant could demand, not merely request, a review by the Local Authority of the standard authorisation and address concerns about place of residence, care plan, care regime and input in relation to rehabilitation.
ii) The Part 8 process would 'avoid the need for the detailed legal representation and submissions and the costs consequence of what would be called for in a full-blown section 21A appeal'.
"Although the delay is short (c. 2 weeks), no good reason has been given for the application not being lodged within 21 days…..The Grounds of Appeal demonstrate no real prospect of success. AA's rights under Art. 5 (4) were respected. Section 21A MCA 2005 provides that the court may determine questions relating to standard authorisations. The court must determine how it approaches that task; it is not compelled to carry out a full inquiry regardless of the merits. The Judge was entitled to have regard to the fact that AA's deprivation of liberty could be and is to be reviewed."
Ground in respect of the appeal to the Court of Appeal
The jurisdictional issue
The relevant statutory provisions
"54 Permission to appeal
(1) Rules of court may provide that any right of appeal to—
(a) a county court,
(b) the High Court, or
(c) the Court of Appeal,
may be exercised only with permission.
(2) This section does not apply to a right of appeal in a criminal cause or matter.
(3) For the purposes of subsection (1) rules of court may make provision as to—
(a) the classes of case in which a right of appeal may be exercised only with permission,
(b) the court or courts which may give permission for the purposes of this section,
(c) any considerations to be taken into account in deciding whether permission should be given, and
(d) any requirements to be satisfied before permission may be given,
and may make different provision for different circumstances.
(4) No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).
(5) For the purposes of this section a right to make an application to have a case stated for the opinion of the High Court constitutes a right of appeal.
(6) For the purposes of this section a right of appeal to the Court of Appeal includes—
(a) the right to make an application for a new trial, and
(b) the right to make an application to set aside a verdict, finding or judgment in any cause or matter in the High Court which has been tried, or in which any issue has been tried, by a jury." (Emphasis supplied.)
"15 General jurisdiction of Court of Appeal.
(1)The Court of Appeal shall be a superior court of record.
(2)Subject to the provisions of this Act, there shall be exercisable by the Court of Appeal—
(a) all such jurisdiction (whether civil or criminal) as is conferred on it by this or any other Act; and
(b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act.
(3)For all purposes of or incidental to—
(a) the hearing and determination of any appeal to the civil division of the Court of Appeal; and
(b)the amendment, execution and enforcement of any judgment or order made on such an appeal,
the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought."
"Rights of appeal
(1) Subject to the provisions of this section, an appeal lies to the Court of Appeal from any decision of the court.
(2) Court of Protection Rules may provide that where a decision of the court is made by—
(a) a person exercising the jurisdiction of the court by virtue of rules made under section 51(2)(d),
(b) a district judge, or
(c) a circuit judge,
an appeal from that decision lies to a prescribed higher judge of the court and not to the Court of Appeal.
(3) For the purposes of this section the higher judges of the court are—
(a) in relation to a person mentioned in subsection (2)(a), a circuit judge or a district judge;
(b) in relation to a person mentioned in subsection (2)(b), a circuit judge;
(c) in relation to any person mentioned in subsection (2), one of the judges nominated by virtue of section 46(2)(a) to (c).
(4) Court of Protection Rules may make provision—
(a) that, in such cases as may be specified, an appeal from a decision of the court may not be made without permission;
(b) as to the person or persons entitled to grant permission to appeal;
(c) as to any requirements to be satisfied before permission is granted;
(d) that where a higher judge of the court makes a decision on an appeal, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—
(i) the appeal would raise an important point of principle or practice, or
(ii) there is some other compelling reason for the Court of Appeal to hear it;
(e) as to any considerations to be taken into account in relation to granting or refusing permission to appeal."
"(2) To be nominated, a judge must be—
(a) the President of the Family Division,
(b) the Vice-Chancellor,
(c) a puisne judge of the High Court,
(d) a circuit judge, or
(e) a district judge."
(1) In the following provisions of this Part—
(a) "appeal judge" means a judge of the court to whom an appeal is made;
(b) "first instance judge" means the judge of the court from whose decision an appeal is brought;
(c) "appellant" means the person who brings or seeks to bring an appeal;
(d) "respondent" means—
(i) a person other than the appellant who was a party to the proceedings before the first instance judge and who is affected by the appeal; or
(ii) a person who is permitted or directed by the first instance judge or the appeal judge to be a party to the appeal.
(2) In this Part, where the expression "permission" is used it means "permission to appeal" unless otherwise stated.
172.— Permission to appeal
(1) Subject to paragraph (8), an appeal against a decision of the court may not be made without permission.
(2) Any person bound by an order of the court by virtue of rule 74 (persons to be bound as if parties) may seek permission to appeal under this Part.
(3) Permission is to be granted or refused in accordance with this Part.
(4) An application for permission to appeal may be made to the first instance judge or the appeal judge.
(5) Where an application for permission is refused by the first instance judge, a further application for permission may be made in accordance with paragraphs (6) and (7).
(6) Where the decision sought to be appealed is a decision of a district judge, permission may be granted or refused by—
(a) the President;
(b) the Vice-President;
(c) one of the other judges nominated by virtue of section 46(2)(a) to (c) of the Act; or
(d) a circuit judge.
(7) Where the decision sought to be appealed is a decision of a circuit judge, permission may only be granted or refused by one of the judges mentioned in paragraph (6)(a) to (c).
(8) Permission is not required to appeal against an order for committal to prison."
Except in accordance with the relevant practice direction—
(a) an appeal from a first instance decision of a circuit judge shall be heard by a judge of the court nominated by virtue of section 46(2)(a) to (c) of the Act; and
(b) an appeal from a decision of a district judge shall be heard by a circuit judge.
181 Appeals against decision of a puisne judge of the High Court, etc
Where the decision sought to be appealed is a decision of a judge nominated by virtue of section 46(2)(a) to (c) of the Act, an appeal will lie only to the Court of Appeal.
The judge nominated by virtue of section 46(2)(a) to (c) of the Act may grant permission to appeal to the Court of Appeal in accordance with this Part, where the decision sought to be appealed was a decision made by a judge so nominated as a first instance judge.
182 Second appeals
(1) A decision of a judge of the court which was itself made on appeal from a judge of the court may only be appealed further to the Court of Appeal.
(2) Permission is required from the Court of Appeal for such an appeal.
(3) The Court of Appeal will not give permission unless it considers that—
(a) the appeal would raise an important point of principle or practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it.
(4) Nothing in this rule or in rule 181 applies to a second appeal from a decision of a nominated officer."
The parties' submissions
i) First, section 54(1) was impliedly excluded from having any operation by virtue of section 53(1) and (4) of the MCA which (together with the COP Rules) created a self-contained regime for appeals, including the need for permission to appeal (section 53(4); that had impliedly excluded the operation of section 54 by virtue of the 'expressio unius est exclusius alterius' principle of statutory construction. The prohibition against appeals against refusals of permission contained in section 54(4) did not apply because a decision refusing permission to appeal against a decision of the Court of Protection was not made under 'this section' for the purposes of section 54(4). (By contrast, in Re B (A Patient) (Court of Protection - Appeal)  1 WLR 278 the Court of Appeal assumed that section 54(1) of the 1999 Act applied to appeals from the Court of Protection. However that case involved an appeal under section 105 of the Mental Health Act 1983 from a decision made by the Court of Protection under Part VII of the Mental Health Act 1983, prior to the coming into force of the MCA, which created the new Court of Protection as a superior court of record. The former provisions did not create a self-contained appeals regime. In particular there was no power under section 106 to make rules governing the need for permission to appeal akin to that in section 53(4) of the MCA, so any appeal to the Court of Appeal was governed by section 54(1) of the 1999 Act.)
ii) Second, and alternatively, even if section 54(1) did in principle apply to appeals from the Court of Protection, it was not given effect in relation to such appeals by the relevant rule of the CPR, 52.3, which provides that:
'An appellant or respondent requires permission to appeal (a) where the appeal is from a decision of a judge in a county court or the High Court …'.
But given that a judge of the Court of Protection was not sitting in the High Court when exercising the jurisdiction of the Court of Protection: see Re B (A Patient) (Court of Protection - Appeal)  1 WLR 278, at paragraphs 32-34, 36, 39, a refusal of permission to appeal against such a decision was not made under 'this section' for the purposes of section 54(4). For that reason also CPR 52 PD 4.8 did not apply to appeals from the Court of Protection.
i) Lane v Esdaile was a rule of statutory interpretation (per Rix LJ in CGU International Insurance plc and others v AstraZeneca Insurance Co Ltd  Bus LR 162 at paragraph 73)) which could give way to other rules. Campbell v The Queen  2 AC 79 provided an example of the courts refusing to apply the rule at all.
ii) Section 53(1) and the COP Rules created a self-contained regime without any specific exclusion on appeals against permission to appeal akin to that in section 54(4) of the 1999 Act and section 13(8) of the TCEA 2007. Section 53(1) and the COP Rules were both drafted after the 1999 Act, which established the Parliamentary draughtsman's practice for making express provision for the exclusion of rights of appeal against refusals of permission to appeal. The absence of an express provision must be taken to mean that Parliament did not intend to restrict appeals from the Court of Protection in that way.
i) Section 53(1) should be given an interpretation consistent with the Court of Appeal's twin objectives of correcting wrong decisions so as to ensure justice and to ensure public confidence in the administration of justice; see Taylor v Lawrence  QB 528, paragraphs 26, 50, 51-55; cited by Rix LJ in CGU, at paragraphs 71-73. Thus, even though the Court of Appeal, as a creature of statute, had no inherent jurisdiction, it had an implied jurisdiction to do what was necessary to achieve these objectives where "a significant injustice has probably occurred and … there is no alternative effective remedy" (Taylor, paragraph 55). In Taylor the Court of Appeal applied this principle so as to allow an appeal to be reopened where fresh evidence was available. In CGU it informed the Court's conclusion that there was a 'residual jurisdiction' to hear an appeal against a refusal of permission, distinguishing the principle in Lane v Esdaile. This was the same principle but in different garb from that stated by Baroness Hale in R. (Cart) v Upper Tribunal  1 AC 663 when she referred, at paragraph 37, to judicial review as:
'an artefact of the common law whose object is to maintain the rule of law - that is, to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise"
and, in consequence,
'there should always be the possibility that another judge can look at the case and check for error'.
(at paragraph 56). Although that was said in the context of judicial review, the underlying principle was the same.
ii) In CGU the Court of Appeal affirmed the existence of a 'residual jurisdiction' to consider appeals against a refusal of permission where the decision of the judge refusing permission was vitiated by some unfairness. Mr Bowen accepted that the ratio decidendi of the decision was limited to appeals in those circumstances. However, he sought to rely on the fact that, in reaching that conclusion, Rix LJ (who gave the judgment of the Court) questioned whether the Lane v Esdaile principle applied to appeals where the first instance decision (as opposed to that of the judge refusing permission) was vitiated by unfairness; thus at paragraph 71 he said:
"If [unfairness] should occur, what reason is there for thinking that Parliament intended that it should be swept under the carpet by the judge's own power to refuse leave to appeal to the Court of Appeal? The same question arises if the unfairness occurs not in the conduct of the judicial appeal at first instance but in the process of considering an application for leave to appeal to the Court of Appeal."
And at paragraph 72, while recognizing that there might be all sorts of contexts in which there were good reasons to limit appeal rights, Rix LJ observed that the same reasoning did not apply where a decision had been taken that was unfair:
"However, there is no similar rationality, it may be said no good reason at all, for thinking that a court's unfairness is to be left incapable of appellate review."
He went on, citing the principle in Taylor v Lawrence:
"…..to highlight the unlikelihood that Parliament, a fortiori in a situation where an appeal jurisdiction was possible, intended the unfair process of a lower court to be immune from appellate review".
Accordingly, s 69(8) of the Arbitration Act 1996 was to be read as only excluding appeals to the Court of Appeal relating to the "the merits of the first instance decision and does not extend it to unfairness in the process" (paragraph 73) (emphasis added).
iii) The same conclusion followed by application of section 3 of the Human Rights Act 1998 in order to ensure compliance with Article 6, for the reasons given by Rix LJ in CGU at paragraphs 73-75.
iv) Applying that reasoning, if (contrary to his earlier submissions) Lane v Esdaile were to have any application at all in the interpretation of section 53(1), the jurisdiction that provision confers was not to be restricted in a case where "a significant injustice has probably occurred and … there is no alternative remedy" (Taylor, para 55).
v) For these purposes a breach of Article 5(4) amounted to a 'serious injustice', so that this interpretation of section 53(1) of the MCA was in any event necessary by virtue of sections 3 and 9 of the Human Rights Act.
vi) Accordingly, in practice, and applying the distinction drawn by the Court in CJU at paragraphs 71-73, the Court had jurisdiction to consider an appeal against a refusal to grant permission to appeal where (a) the refusal of permission was itself one that was vitiated by unfairness or some significant procedural irregularity (CJU); or (b) the original decision was unjust due to some procedural irregularity (i.e. those falling within COP Rules, r. 179(3)(b)) which remained unremedied. On the other hand, jurisdiction was likely to be excluded in respect of a refusal of permission to appeal which could not itself be impugned where the appeal related to the merits of the underlying decision (i.e. those falling within, rule 179(3)(a)). Each case would need to be determined on its own facts by reference to the question of whether there was a 'significant injustice' for which there was otherwise no remedy.
i) The appeal against HHJ Gore QC's decision was based upon his failure to make a determination as to the lawfulness of AA's detention as required by Article 5(4). That was a failure that went beyond a lack of fairness or other procedural irregularity; it was no decision at all and amounted to a 'serious injustice' for which there was no remedy unless the Court heard this appeal. The challenge to the decision was not based upon the lack of merits of HHJ Gore QC's decision; rather there has been an injustice caused by HHJ Gore QC's failure to decide the issue which he was required to decide by virtue of Article 5(4). That was an appeal falling with COP Rules r. 179(3)(b).
ii) It was not necessary also to demonstrate that Mr. Justice Peter Jackson's decision was itself unfair or vitiated by some other fundamental procedural irregularity (the ratio of CGU). However his decision failed to grapple with the significance of the injustice and he misdirected himself in concluding that it was unnecessary for HHJ Gore QC to consider the substance of the section 21A application, and failed to remedy the Article 5(4) breach. None of this was surprising given it was Mr. Justice Peter Jackson who directed that the Appellant demonstrate what 'purpose' was to be served by the proceedings which set the process off in the wrong direction. The Appellant did not suggest that Mr. Justice Peter Jackson's decision was itself vitiated by unfairness or some other fundamental procedural irregularity; only that there had been a significant injustice (a breach of Article 5(4)) and the judge failed to remedy it when refusing permission to appeal.
Analysis and determination
"Their Lordships consider that the principle in Lane v Esdaile, as explained in In re Housing of the Working Classes Act, 1890, Ex p Stevenson, 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."
"No appeal to the Court of Appeal from any interlocutory order, ... shall, except by special leave of the Court of Appeal, be brought after the expiration of twenty-one days, and no other appeal shall, except by such leave, be brought after the expiration of one year."
In the present context that rule was analogous to the combination of section 53(4) of the MCA and rule 172(1) and (7) of the COP Rules. The Court of Appeal had refused to give the appellants special leave to appeal from a final judgment of Kay J given over three years earlier. The appellants then appealed to the House of Lords against the refusal of leave. The House decided that there was no right of appeal. Lord Halsbury LC accepted that the words "order or judgment" in section 3 of the 1876 Act were capable on their wording of including a decision to refuse leave. The question was whether such a construction could be reconciled with the terms and purpose of Ord LVIII, r 15. Lord Halsbury said:-
"But when I look not only at the language used, but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal - that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of Appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceeding the Court of Appeal might be entertaining an appeal upon the very same question when this House was entertaining the question whether the Court of Appeal ought ever to have granted the appeal. My Lords, it seems to me that that would reduce the provision to such an absurdity that even if the language were more clear than is contended on the other side one really ought to give it a reasonable construction."
All members of the House concurred, Lord Bramwell with some hesitation because he was troubled by the fact that, when the Rules were enacted in 1873, there was to be no right of appeal to the House of Lords at all. Lord Herschell said that a refusal of leave to appeal was "not, within the true meaning of the Appellate Jurisdiction Act, an order or judgment from which there can be an appeal".
"The [Working Classes] Act conferred powers of compulsory purchase upon local authorities and provided for arbitration on the price. Sched. II., clause 26(a) provided that a party dissatisfied with the amount of the compensation ascertained by an award:-
"may, upon obtaining the leave of the High Court, which leave may be granted by such Court, or any judge thereof at chambers, in a summary manner, and upon being satisfied that a failure of justice will take place if the leave is not granted, submit the question of the proper amount of compensation to a jury."
Mr Stevenson was dissatisfied with the compensation awarded to him by the arbitrator and applied to a judge in chambers for leave to appeal to a jury. The application was refused and the Court of Appeal, following Lane v Esdaile, held that there was no appeal against the refusal. Lord Esher MR first analysed the nature of the statutory right to take the matter before a jury and said that it was, upon the true construction of the Act, a right of appeal. He then went on to say:-
"I am, on principle and on consideration of the authorities that have been cited, prepared to lay down the proposition that, 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 of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given. So, if the decision in this case is to be taken to be that of the judge at chambers, he is the legal authority to decide the matter, and his decision is final; if it is to be taken to be that of the High Court, then they are the legal authority entrusted with the responsibility of deciding whether there shall be leave to appeal, and their decision is final. In either case there is no appeal to this Court. What was said in the case of Lane v Esdaile supports the view that I am taking. But the very nature of the thing really concludes the question; for, if, where a legal authority has power to decide whether leave to appeal shall be given or refused, there can be an appeal from that decision, the result is an absurdity, and the provision is made of no effect. If the contention for the claimant be correct, it would follow that the case might be taken from one Court to another till it reached the House of Lords on the question whether there should be leave to appeal."
The judgment of Fry LJ was to the same effect:-
"The legislature has thought fit to impose a condition in respect of this right of appeal, viz., that the leave of the High Court must be obtained, which leave is to be granted in the manner pointed out, viz., either by the Divisional Court or by a judge at chambers. Then is the order - for such I will assume it to be - of the High Court, granting or refusing leave to appeal, subject to appeal? In my opinion it is not. I do not come to that conclusion on the ground that the word `order' is not properly applicable to it; but from the nature of the thing and the object of the legislature in imposing this fetter on appeals. The object clearly was to prevent frivolous and needless appeals. If, from an order refusing leave to appeal, there may be an appeal, the result will be that, in attempting to prevent needless and frivolous appeals, the legislature will have introduced a new series of appeals with regard to the leave to appeal. Suppose, for the sake of argument, that in this case the claimant's grounds for wishing to appeal are frivolous; if the contention on his behalf is correct, he could appeal from the judge at chambers to the Divisional Court, from the Divisional Court to this Court, and from this Court to the House of Lords on the question whether he shall be allowed to appeal. It appears to me that that would be an absurd result in the case of a provision the object of which is to prevent frivolous and needless appeals. Therefore, from the very nature of the thing the decision of the Court which has the power of giving leave to appeal is, in my opinion, final. This seems to me to be the ratio decidendi of Lane v Esdaile. That case appears to decide that, where the right to appeal depends upon the granting or refusal of leave to appeal by a Court, that granting or refusal of leave must be final."
Lopes LJ said:-
"Where an appeal is given that is made subject to the leave of the Court or a judge, or any other legal authority, I think that the granting or refusal of leave by such Court, or judge, or other legal authority, is final and unappealable. The object of making appeals subject to leave is to prevent unnecessary and frivolous appeals. If an appeal were allowed from the granting or refusal of leave to appeal, the result would be that, instead of checking appeals, they might be multiplied to most mischievous extent; for an appeal from the granting or refusal of leave might be carried from the Divisional Court to this Court, and from this Court to the House of Lords."
Lady Justice Black :
Lord Justice Moses :