Although this case is not a housing case (it was a family “relocation” case), a non-lawyer was assisting with the case. Lord Justice Wall explained in excellent simple to understand terms the law of precedent and appeals of English law.

Below is a taken from the transcript.

BD v AID [2010] EWCA Civ 50

Lord Justice Wall (paras 4 – 14)

There are, of course, only two bases upon which permission to appeal can be granted. They are both contained in Civil Procedure Rule (CPR) 52.3(6), which reads as follows:-

(6) Permission to appeal may be given only where -

(a) the court consider that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard.

I propose to address each of these headings in turn. Before I do so. However, it is necessary; (1) that I explain to the applicant (who is not a lawyer) one feature of the English Legal System which is relevant to both limbs of the rule, namely the doctrine of precedent; and (2) that I explain how the doctrine of precedent impacts on the present case.

The doctrine of precedent means that judges at first instances, such as Judge Corbett, are bound by – and thus obliged to follow – decisions of the Court of Appeal and the House of Lords (now, of course, the Supreme Court) relating to the same subject matter as the case which the first instance judge is hearing. Furthermore, the Court of Appeal is itself bound by its own previous decisions.

There is also authority for the proposition that Circuit Judges such as Judge Corbett are bound by the decisions of High Court Judges:- see the decision of the Court of appeal in Gloucestershire County Council v P. and others [2000] Fam 1 at 3B-C, 8C-D and 12G.

In Family Law the doctrine of precedent is perhaps less rigidly applied than in other areas of the law for two main reasons. The first is that the facts of family cases vary very widely, and it is often possible to “distinguish” a decision of the Court of Appeal or the House of Lords – and thus to decline follow it – on the grounds that the facts are very different from the case being decided. The second reason is that family judges, in deciding the paramountcy principle under section 1 of the Children Act 1989 exercise a very wide discretion, with which the appellate court will not interfere unless it can be demonstrated that the judge was “plainly wrong” – see the decision of the House of Lords in G v G [1985] 1 WLR 645.

However, where a superior court – be it the House of Lords or the Court of Appeal – has either stated a principle or given guidelines to be followed by judges hearing particular categories of case, the judge at first instance has to follow that principle or those guidelines.

Thus in “relocation” cases, the judge at first instance is duty bound to follow the guidance given in Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473 and other cases of the Court of Appeal on the same point.

The principles and guideline in a decision of the Court of Appeal in a case such as Payne v Payne can only be altered in one of two ways. The first is by legislation: the second is by it being overruled by a decision of the Supreme Court.

In English law, Parliament is supreme and sovereign. It can, in theory, do whatever it likes. The task of the courts is to implement the will of Parliament. So, if Parliament altered the Children Act 1989 or introduced separate legislation dealing with relocation cases, courts at every level, including the Supreme Court, would be bound by what Parliament had enacted.

Permission is, of course, required for an appeal from the Court of Appeal to the Supreme Court. In some circumstances, a case can “leap-frog” where the outcome in the Court of Appeal is a foregone conclusion. The normal practice, however, is for the Court of Appeal to refuse permission to appeal from its decisions, so that the Supreme Court can itself decide whether or not it wishes to hear the particular case. However, one rule is clear. If the Court of Appeal, at or after an oral hearing, refuses permission to appeal from a first instance judge to the Court of Appeal, that is the end of the matter. The disappointed litigant cannot appeal to the Supreme Court from such a refusal. To put the matter is concrete terms: – if I refuse the applicant’s application in the present case, the domestic appeal process will come to an end. The applicant will not be able to appeal my refusal to the Supreme Court: – see paragraph 4.8 of the Practice Direction to Part 52 of CPR, which reads: -

There is no appeal from a decision of the appeal court to allow or refuse permission to appeal to that court.

Paragraph 4.8 is given statutory force by section 54 of the Access to Justice Act 1999, which I need not set out.

For a very good detailed article see this article: Alway Associates

Tomatoes:
Fruit or Vegetable? This is a subject that comes up every so often and I’ve heard it for years. If nothing else it’s fun to kick around.

Botanically the Tomato is a fruit. In 1893 Jon Nix et al were fruit importers (or so they thought). They sued New York customs collector Edward Hedden to recover duties “paid under protest” on the import of tomatoes from the West Indies. At the time, vegetables required a 10 percent tariff. Fruits were imported duty-free. In other words Nix said tomatoes were fruit (no duty) and Hedden said they’re vegetables (pay me big boy)!

So, they went to court, the Supreme Court. After arguments were presented Justice Gray ruled that because tomatoes where known as and used as vegetables, that’s what they were…vegetables! Nix got Nixed!

Here’s the battle:

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

U.S. Supreme Court

NIX v. HEDDEN, 149 U.S. 304 (1893)

149 U.S. 304

NIX et al.
v.
HEDDEN, Collector.
No. 137.

May 10, 1893

At law. Action by John Nix, John W. Nix, George W. Nix, and Frank W. Nix against Edward L. Hedden, collector of the port of New York, to recover back duties paid under protest. Judgment on verdict directed for defendant. 39 Fed. Rep. 109. Plaintiffs bring error.
Affirmed.

Statement by Mr. Justice GRAY: This was an action brought February 4, 1887, against the collector of the port of New York to recover back duties paid under protest on tomatoes imported by the plaintiff from the West Indies in the spring of 1886, which the collector assessed under ‘Schedule G.-Provisions,’ of the tariff act of March 3, 1883, (chapter 121,) imposing a duty on ‘vegetables in their natural state, or in salt or brine, not specially enumerated or provided for in this act, ten per centum ad valorem;’ and which the plaintiffs contended came within the clause in the free list of the same act, ‘Fruits, green, ripe, or dried, not specially enumerated or provided for in this act.’ 22 Stat. 504, 519.

At the trial the plaintiff’s counsel, after reading in evidence definitions of the words ‘fruit’ and ‘vegetables’ from Webster’s Dictionary, Worcester’s Dictionary, and the Imperial Dictionary, called two witnesses, who had been for 30 years in the business of selling fruit and vegetables, and asked them, after hearing these definitions, to say whether these words had ‘any special meaning in trade or commerce, different from those read.’

One of the witnesses answered as follows: ‘Well, it does not classify all things there, but they are correct as far as they go. It does not take all kinds of fruit or vegetables; it takes a portion of them. I think the words ‘fruit’ and ‘vegetable’ have the same meaning in trade to-day that they had on March 1, 1883. I understand that the term ‘fruit’ is applied in trade only to such plants or parts of plants as contain the seeds. There are more vegetables than those in the enumeration given in Webster’s Dictionary under the term ‘vegetable,’ as ‘cabbage, cauliflower, turnips, potatoes, peas, beans, and the like,’ probably covered by the words ‘and the like.”

The other witness testified: ‘I don’t think the term ‘fruit’ or the term ‘vegetables’ had, in March, 1883, and prior thereto, any special meaning in trade and commerce in this country different from that which I have read here from the dictionaries.’

The plaintiff’s counsel then read in evidence from the same dictionaries the definitions of the word ‘tomato.’ The defendant’s counsel then read in evidence from Webster’s Dictionary the definitions of the words ‘pea,’ ‘egg plant,’ ‘cucumber,’ ‘squash,’ and ‘pepper.’

The plaintiff then read in evidence from Webster’s and Worcester’s dictionaries the definitions of ‘potato,’ ‘turnip,’ ‘parsnip,’ ‘cauliflower,’ ‘cabbage,’ ‘carrot,’ and ‘bean.’

No other evidence was offered by either party. The court, upon the defendant’s motion, directed a verdict for him, which was returned, and judgment rendered thereon. The plaintiffs duly excepted to the instruction, and sued out this writ of error.

Edwin B. Smith, for plaintiffs in error.

Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.

The single question in this case is whether tomatoes, considered as provisions, are to be classed as ‘vegetables’ or as ‘fruit,’ within the meaning of the tariff act of 1883.

The only witnesses called at the trial testified that neither ‘vegetables’ nor ‘fruit’ had any special meaning in trade or commerce different from that given in the dictionaries, and that they had the same meaning in trade to-day that they had in March, 1883.

The passages cited from the dictionaries define the word ‘fruit’ as the seed of plaints, or that part of plaints which contains the seed, and especially the juicy, pulpy products of certain plants, covering and containing the seed. These definitions have no tendency to show that tomatoes are ‘fruit,’ as distinguished from ‘vegetables,’ in common speech, or within the meaning of the tariff act.

There being no evidence that the words ‘fruit’ and ‘vegetables’ have acquired any special meaning in trade or commerce, they must receive their ordinary meaning. Of that meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue; and upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court.

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

The attempt to class tomatoes as fruit is not unlike a recent attempt to class beans as seeds, of which Mr. Justice Bradley, speaking for this court, said: ‘We do not see why they should be classified as seeds, any more than walnuts should be so classified. Both are seeds, in the language of botany or natural history, but not in commerce nor in common parlance. On the other hand in speaking generally of provisions, beans may well be included under the term ‘vegetables.’ As an article of food on our tables, whether baked or boiled, or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put. Beyond the common knowledge which we have on this subject, very little evidence is necessary, or can be produced.

Judgment affirmed.

A closure notice may be given verbally and prohibits all persons except the person who lives at the property and the owner from entering the property.

After the issue of a closure notice, an application may be made to the magistrates court for a closure order. The hearing must be held within 48 hours.
If an order is granted, it may prohibit “all” persons (including the owner) from entering the property for up to 3 months!

It is possible for the owner to claim compensation if they have suffered a financial loss as a result of the closure order. [11J](see below)

11A Part 1A closure notice

(1) This section applies to premises if a police officer not below the rank of superintendent (“the authorising officer”) or the local authority has reasonable grounds for believing—

(a) that at any time during the relevant period a person has engaged in anti-social behaviour on the premises, and

(b) that the use of the [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']premises is associated with significant and persistent disorder or persistent serious nuisance to members of the public.

(2) The authorising officer may authorise the issue of a Part 1A closure notice in respect of the premises if the officer is satisfied—

(a) that the local authority has been consulted; and

(b) that reasonable steps have been taken to establish the identity of any person who lives on the premises or who has control of or responsibility for, or an interest in, the premises.

(3) The local authority may authorise the issue of a Part 1A closure notice in respect of the premises if it is satisfied—

(a) that the appropriate chief officer has been consulted; and

(b) that reasonable steps have been taken to establish the identity of any person who lives on the premises or who has control of or responsibility for, or an interest in, the premises.

(4) An authorisation under subsection (2) or (3) may be given orally or in writing, but if it is given orally the authorising officer or local authority (as the case may be) must confirm it in writing as soon as it is practicable.

(5) A Part 1A closure notice must—

(a) give notice that an application will be made under section 11B for the closure of the premises;

(b) state that access to the premises by any person other than a person who habitually resides in the premises or the owner of the premises is prohibited;

(c) specify the date and time when, and the place at which, the application will be heard;

(d) explain the effects of an order made in pursuance of section 11B;

(e) state that failure to comply with the notice amounts to an offence; and

(f) give information about relevant advice providers.

(6) A Part 1A closure notice must be served by—

(a) a constable if its issue was authorised by the authorising officer, or

(b) an employee of the local authority if its issue was authorised by the authority.

(7) Service is effected by—

(a) fixing a copy of the notice to at least one prominent place on the premises,

(b) fixing a copy of the notice to each normal means of access to the premises,

(c) fixing a copy of the notice to any outbuildings which appear to the server of the notice to be used with or as part of the premises,

(d) giving a copy of the notice to at least one person who appears to the server of the notice to have control of or responsibility for the premises, and

(e) giving a copy of the notice to the persons identified in pursuance of subsection (2)(b) or (3)(b) (as the case may be) and to any other person appearing to the server of the notice to be a person of a description mentioned in that provision.

(8) The Part 1A closure notice must also be served on any person who occupies any other part of the building or other structure in which the premises are situated if the server of the notice reasonably believes, at the time of serving the notice under subsection (7), that the person’s access to the other part of the building or structure will be impeded if a Part 1A closure order is made under section 11B.

(9) A person acting under subsection (7) may enter any premises, using reasonable force if necessary, for the purposes of complying with subsection (7)(a).

(10) The Secretary of State may by regulations specify premises or descriptions of premises to which this section does not apply.

(11) In this section—
“information about relevant advice providers” means information about the names of, and means of contacting, persons and organisations in the area that provide advice about housing and legal matters;
“the relevant period” means the period of 3 months ending with the day on which the authorising officer or the local authority (as the case may be) considers whether to authorise the issue of a Part 1A closure notice in respect of the premises.

11B Part 1A closure order

(1) If a Part 1A closure notice has been issued under section 11A an application must be made under this section to a magistrates’ court for the making of a Part 1A closure order.

(2) An application under subsection (1) must be made by—

(a) a constable if the issue of the Part 1A closure notice was authorised by the authorising officer, or

(b) the local authority if the issue of the Part 1A closure notice was authorised by the authority.

(3) The application must be heard by the magistrates’ court not later than 48 hours after the notice was served in pursuance of section 11A(7)(a).

(4) The magistrates’ court may make a Part 1A closure order if and only if it is satisfied that each of the following paragraphs applies—

(a) a person has engaged in anti-social behaviour on the premises in respect of which the Part 1A closure notice was issued;

(b) the use of the premises is associated with significant and persistent disorder or persistent serious nuisance to members of the public;

(c) the making of the order is necessary to prevent the occurrence of such disorder or nuisance for the period specified in the order.

(5) A Part 1A closure order is an order that the premises in respect of which the order is made are closed to all persons for such period (not exceeding 3 months) as is specified in the order.

(6) But the order may include such provision as the court thinks appropriate relating to access to any part of the building or structure of which the premises form part.

(7) The magistrates’ court may adjourn the hearing on the application for a period of not more than 14 days to enable—

(a) the occupier of the premises,

(b) the person who has control of or responsibility for the premises, or

(c) any other person with an interest in the premises,
to show why a Part 1A closure order should not be made.

(8) If the magistrates’ court adjourns the hearing under subsection (7) it may order that the Part 1A closure notice continues in effect until the end of the period of the adjournment.

(9) A Part 1A closure order may be made in respect of the whole or any part of the premises in respect of which the Part 1A closure notice was issued.

…

11J Part 1A closure notices and orders: compensation

(1) This section applies to any person who incurs financial loss in consequence of-
(a) the issue of a Part 1A closure notice, or
(b) a Part 1A closure order having effect.

(2) A person to whom this section applies may apply to-
(a) the magistrates’ court which considered the application for a Part 1A closure order;
(b) the Crown Court if the Part 1A closure order was made or extended by an order made by that Court on an appeal under section 11F.

(3) An application under this section must not be entertained unless it is made not later than the end of the period of 3 months starting with whichever is the later of-
(a) the day the court decides not to make a Part 1A closure order;
(b) the day the Crown Court dismisses an appeal against a decision not to make a Part 1A closure order;
(c) the day the Part 1A closure order ceases to have effect.

(4) On an application under this section the court may order the payment of compensation out of central funds if it is satisfied-
(a) that the person is not associated with such use of the premises as is mentioned in section 11A(1)(b),
(b) if the person is the owner or occupier of the premises, that the person took reasonable steps to prevent such use of the premises,
(c) that the person has incurred financial loss as mentioned in subsection (1), and
(d) having regard to all the circumstances it is appropriate to order payment of compensation in respect of that loss.

(5) In this section “central funds” has the same meaning as in enactments providing for the payment of costs.[/amember_protect]