HEARING DATE 26 October 1993
University admissions procedures - Polytechnics' Central Admissions System - Unconditional offer given to plaintiff as a result of a clerical error - Intention to create legal relations - Binding agreement - Consideration - Detriment - Estoppel by convention - Exercise of discretion to grant mandatory injunction at interlocutory stage
COUNSEL
Lord Campbell of Alloway QC and N Alban-Lloyd for the Appellant
J Smouha for
the Respondent
PANEL: Glidewell, Evans, Waite LJJ
JUDGMENT BY GLIDEWELL LJ
(Reading the Judgment of the Court): We have considered the arguments advanced on both sides upon the issue whether the defendants entered into a contract with a plaintiff to enrol him, ie. to provide a place for him on the BSc physiotherapy course, commencing late September or, as it transpired, early in October of this year. We are unanimously of the view that there is a clear and strong case for concluding that such a contract was made, for good consideration. That is sufficient for the purposes of interlocutory application. We shall give our reasons for this conclusion later.
There is therefore no need to consider the plaintiff's/applicant's alternative argument based on estoppel. Mr Smouha, under the circumstances we do not need to hear you on that.
Since we are differing from the judge on the contract issue, it is now necessary for us, in the exercise of our discretion, to decide whether this is an appropriate case for the grant of a mandatory injunction.
Since we have decided the first issue in favour of the plaintiff/applicant, as he is, it is right that he should have leave to appeal, which we now grant. From now on this is an appeal.
Lord Campbell, you raised the question whether leave to appeal was required. This is a matter of some general importance. Because there has been a substantial change, although we are going to have to give our reasons generally later, I do propose, at the close of the argument today, to give a short judgment on that issue.
Application for leave to adduce further evidence made by Respondent.
GLIDEWELL LJ: We are prepared to admit this as further evidence having considered it. Having considered the effect of it, it makes no difference to the conclusion we announced 10 minutes ago that there was a contract or at least there is a strong and clear case for submitting there was a contract supported by a good consideration on the facts of this case. The situation may be different in other cases.
We have already indicated that we need time to give our reasons for the decision that we have already announced in part; but since it is of considerable importance to the parties to know as rapidly as possible what our decision is, we think it right to announce now that we do not consider that this is an appropriate case for a mandatory injunction. In other words, the appeal will be dismissed and we will give reasons in writing later for that decision.
Do you want any directions as to the progress of action?
MR. SMOUHA: I would have thought they could be agreed. As to question of damages the urgency is rather less.
GLIDEWELL LJ:There is not a defence yet. I would have thought the only direction we needed to give would be defence in 28 days.
MR. SMOUHA: Except, my Lord, there is a statement of claim, it bears no resemblance at the moment to the case that has been put before your Lordships.
LORD CAMPBELL: The first matter is I ask for leave, if I may, to appeal to the House of Lords. Secondly, that on any question of order for costs as far as this appeal is concerned .
GLIDEWELL LJ:We would prefer to reserve that until we have given our reasons. It will be easier for all of you to argue costs when you know our reasons.
LORD CAMPBELL: Going to be a submission related to issues of time?
GLIDEWELL LJ:And as far as directions are concerned if you prefer we should leave them, we will of course do so. But it may be that what would be sensible to say that if you do want leave to amend your statement of claim you can have it and give time directions as to that and the defence.
LORD CAMPBELL: My Lord, that would be appropriate. I understand it, in any event, the practice of your Lordship's court is to refuse an application for leave to appeal.
GLIDEWELL LJ:Not invariable, Lord Campbell, frequent but not invariable. Mr Smouha, I imagine you oppose. Lord Campbell, we shall follow the normal not invariable practice. If you persuade their Lordships' House so be it. Then we say leave to amend the statement of claim any amendment to be filed within 21 days, defence 21 days thereafter, Mr Smouha and further directions the matter will then take its ordinary course.
DISPOSITION
Judgment accordingly SOLICITORS
North Lewisham Law Centre; Eversheds, Alexander Taltham, Warrington
GLIDEWELL LJ: (Reading the Judgment of the Court): This is an application for leave to appeal against the refusal by a Deputy High Court Judge to grant a mandatory injunction on an interlocutory application. I have already announced that we grant leave to appeal, but we do not consider that the case is appropriate for the grant of a mandatory injunction. Therefore, we dismiss the appeal and we shall give our reasons for those decisions later.
At the outset of the hearing Lord Campbell, for the Applicant (now the Appellant), queried whether leave to appeal is required. As there has recently been major change in respect of both the relevant statute and the Rules of the Supreme Court, but it has not yet been possible to incorporate all the new material at least in the noterup part of the supplement to the Supreme Court Practice, we think it may be helpful to give a short judgment at this stage making the position clear.
Until 30 September 1993, the matter was governed by s 18(1) of the Supreme Court Act 1981 which provides:
"No appeal shall lie to the Court of Appeal" and there then follow a number of subparagraphs of which the vital one for present purposes was (h) which read so far as is material:"without the leave of the court or tribunal in question or of the Court of Appeal, from any interlocutory order or interlocutory judgment made or given by the High Court or any other court or tribunal, except in the following cases, namely
(i) ...
(ii) ...
(iii) where an injunction ... is granted or refused."
Thus until 30 September of this year leave to appeal against the refusal of a mandatory injunction to the Court of Appeal was not required. I should say that there are other subparas in that section which provided that, for instance, leave to appeal from a Divisional Court of an appeal to the High Court was not required. It said nothing about decisions by a single judge or decisions on judicial review.
The whole position was altered by the coming into force of s 7 of the Courts and Legal Services Act 1990. That section provides so far as is material:
"(1) Section 18 of the Supreme Court Act 1981... shall be amended as follows.(2) In subsection (1), paragraphs (e), (f) and (h)... shall be omitted."
Then two new subsections of s 18 are introduced, sub-ss 1(A) and 1(B). 1(A) provides:
"1(A) In any such class of case as may be prescribed by Rules of the Supreme Court, an appeal shall lie to the Court of Appeal only with the leave of the Court of Appeal or such court or tribunal as may be specified by the rules in relation to that class."
Section 7 of the 1990 Act did not come into force on the passing of the Act. Section 124(3) of the Act provided that it, amongst other sections, should come into force on a date to be provided by Order.
The relevant Order was The Courts and Legal Services Act 1990 (Commencement No. 9) Ord 1993, which brought s 7 into force partly on 23 July this year and partly on 1 October this year. Simultaneously, there was made an amendment to the Rules of Supreme Court by the Rules of the Supreme Court (Amendment) rr 1993 which were made on 30 July 1993 and came into force also on 1 October. Amongst other matters r 6(2) amends Ord. 59 of the Rules of the Supreme Court by substituting a new r 1(B) which sets out classes of cases prescribed for the purposes of the new sub-s 1(A) of s 18 of the Act.
The combined effect of the bringing into force of s 18 (1)(A) and 1(B) of the 1981 Act, and of the new Rule (1)(B), is to add considerably to the categories of case in which leave to appeal to the Court of Appeal is now required.
So far as this action is concerned by paragraph (f) of r 1(B), appeals against all interlocutory orders of the High Court now require leave save:
"(i) where the liberty of the subject is concerned;(ii) where the residence, education or welfare of a minor is concerned;
(iii) where an applicant for contact with a minor is refused all contact with the minor;
(iv) in the case of a decree nisi in a matrimonial cause."
It is now clear that since 1 October leave to appeal against the grant or refusal of a mandatory injunction is required. By r 7 the new rule applies to all proceedings in which an appeal is set down or an application is lodged with the Court of Appeal on or after 1 October 1993. As this application was lodged after 1 October, it is therefore clear that leave to appeal in this case is needed. As I said earlier this morning we granted leave.
It is right to go on and say, for the information of those members of the profession who have not yet appreciated it, that there are other areas in which leave to appeal was formerly not required in which it is now required. They include, by para 1(B) of the new rule:
"(c) an order granting or refusing any relief made at the hearing of an application for judicial review, except in proceedings arising from a decision made by virtue of the Immigration Act 1971(a), the British Nationality Act 1981(b), the Immigration Act 1988(c), the Asylum and Immigration Appeals Act 1993(d) or any other enactment relating to nationality or immigration which for the time being is in force in any part of the United Kingdom;(d) orders which include the giving or refusing of possession of land;
(e) orders including the grant of an application for the grant of a new tenancy under Part II of the Landlord and Tenant Act 1954(e)..."
It should also be noted that there has been an alteration relating to appeals against orders refusing unconditional leave to defend under Ord. 14, 14A and 86 of the Rules of the Supreme Court. Although, as I say, it has not yet been possible to incorporate the Order to which I have referred into the supplement to the Supreme Court Practice in the relevant noterup part, the amendment Ord is set out in what is called "Stop Press" at the beginning of the volume. It has the effect that we have sought to summarize in this judgment, and we hope that due notice will now be taken of it.
DISPOSITION
Judgment accordingly
SOLICITORS
North Lewisham Law Centre; Eversheds, Alexander Taltham, Warrington