Abstract issuesTimes 5 MarchRe [2008] 1 All ER 839sub nom Floe Telecom Ltd v Office of Communications [2009] EWCA Civ 47, (2009) Times 23 February, [2006] 4 All ER 688
7.162Courts deal only with issues in the context of a dispute between the parties. They do not deal with points that are of only abstract interest to them, however important they may be. Tribunals take the same approach.
Why?
7.163There are at least four reasons for this approach.
7.164First, it is the nature of judicial proceedings that they deal with issues in the context of the facts of a particular case. In
Ainsbury v Millington,
1[1987] 1 WLR 379. Lord Bridge said:
It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.
2[1987] 1 WLR 379 at 381.7.165Second, dealing with an issue in the abstract can cause problems for those it is intended to help. In
R (Burke) v General Medical Council,
3[2006] QB 273 at [21]. the Court of Appeal said:
The court should not be used as a general advice centre. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice.
4This reasoning would not apply to the Upper Tribunal giving guidance on matters that are regularly before the tribunal. See chapter 13 below.7.166Third, it is the nature of some issues that they cannot be considered in the abstract. The fairness of a hearing is an example. It can only be determined in the context of the evidence and the case as a whole. It was for these reasons that the Court of Appeal decided in
Coles v Barracks5[2007] ICR 60 at [71]–[72] and [81]–[83]. that an issue of fairness (in that case, whether evidence should be disclosed) could not be determined as a preliminary, case management issue.
7.167Fourth, by taking issues in a particular order, some may be rendered abstract. Taking such a course may, as Tuckey LJ explained in
Palfrey v Wilson,
6[2007] EWCA Civ 94 at [5]; (2007) Times 5 March. be ‘in the interest of saving expense and dealing with cases proportionately and expeditiously’.
What is not an abstract issue?
7.168No abstract issues arises just because:
•it is no longer of general relevance or importance, so long as it affects the rights of the parties to the case;
7R (Bushell) v Newcastle upon Tyne Licensing Justices [2006] 1 WLR 496. •the court deals with a case on agreed or even assumed facts;
8The classic example is Donoghue v Stevenson [1932] AC 562, although that was not a tribunal case. •an appellate court deals with an issue in principle, leaving the application of the principles to a lower-tier decision-maker.
9As explained by Lord Woolf in R (Roberts) v Parole Board [2005] 2 AC 738 at [35]. See below for abstract issues and matters of opinion.
7.169It may be possible to generate a live issue for the purposes of an appeal by making an appropriately worded declaration. However, this was criticised by the Court of Appeal in
R (Weaver) v London and Quadrant Housing Trust.
10[2009] 4 All ER 865 at [86]–[91].Non-binding and other matters of opinion
7.170An issue that concerns an opinion that is non-binding is not abstract if the opinion is potentially of value to the parties.
11Re DLP Ltd’s Patent [2008] 1 All ER 839 at [20]. And a decision whether the decision-maker was entitled to form that opinion is a live issue, not an abstract one.
12[2008] 1 All ER 839 at [20].When may an abstract issue be pursued?
7.171The principles applied by the courts give guidance on the circumstances in which tribunals should allow an abstract issue to be pursued. It depends on whether the issue is one of private law, public law or procedural law. An invitation from the First-tier Tribunal is not sufficient.
13Vodafone Ltd v British Telecommunications plc [2010] 3 All ER 1028 at [48].Private law issues
7.172In
Ainsbury v Millington,
14[1987] 1 WLR 379. the House of Lords reaffirmed the basic principle that the courts do not deal with points that are of only abstract interest to the parties, however important they may be. Lord Bridge gave three examples of circumstances in which it might be appropriate to decide an abstract issue: (i) friendly settlement cases; (ii) test cases; and (iii) cases pursued in order to resolve an issue on costs.
15[1987] 1 WLR 379 at 381. The fact that an issue is of interest to the legal and wider community is not sufficient.
16Thorpe LJ in Harb v King Fahd Bin Abdul Aziz [2006] 1 WLR 578 at [29].7.173In
Rolls-Royce plc v Unite the Union,
17[2010] 1 WLR 318. the Court of Appeal agreed to decide an issue on age discrimination. Wall LJ set out five reasons for doing so: (i) the issue was one of statutory construction, which was a matter of public importance and one of the court’s proper functions; (ii) the parties were not agreed on the issue and it would arise again in future; (iii) the issue was important and would affect a large number of people, not only the company’s employees; (iv) the propriety of proceeding had received different answers from different High Court judges; and (v) the parties wanted the issue decided and had argued it fully, and the court had spent a considerable time on it.
18[2010] 1 WLR 318 at [54]–[57]. Arden LJ added that although there was no alleged victim before the court, there was a dispute between the parties on matters that affected individual contracts of employment.
19[2010] 1 WLR 318 at [151].7.174These principles are limited to ‘disputes concerning private law rights between the parties to the case’.
20Lord Slynn in R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450 at 456. In
Bowman v Fels,
21[2005] 1 WLR 3083 at [6]–[7] and [13]–[14]. the Court of Appeal decided that they do not apply if a public law issues arises in the context of a private dispute.
7.175Neuberger LJ set out the position in
Hutcheson v Popdog Ltd:
22[2012] 1 WLR 782 at [15].Both the cases and general principle seem to suggest that, save in exceptional circumstances, three requirements have to be satisfied before an appeal, which is academic as between the parties, may (and I mean ‘may’) be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated.
Public law issues
7.176The power to decide issues in which at least one of the parties no longer has an interest is wider in the case of public law than private law. However, the House of Lords decided that there are limits to the power. In
R v Secretary of State for the Home Department ex p Salem,
23[1999] 1 AC 450. Lord Slynn said that the power must ‘be exercised with caution’ and only if ‘there is a good reason in the public interest for doing so’.
24[1999] 1 AC 450 at 457. He gave as an example:
… when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.
25[1999] 1 AC 450 at 457. These conditions do not have to be satisfied in every case: Hampshire County Council v JP [2009] UKUT 239 (AAC) at [17].These conditions were not satisfied in that case, because there were few such cases and they all depended on their particular facts.
7.177The courts have not tried to define more precise criteria than those set out by Lord Slynn. Rather, they have identified the particular facts and circumstances that justify considering the issue in a particular case.
•In
Attorney-General v BBC,
26[1981] AC 303. Viscount Dilhorne explained that the House of Lords was dealing with an issue that no longer arose between the parties, because they wanted the House to deal with it and it would remove uncertainty as to the bodies to which the law of contempt applied.
27[1981] AC 303 at 336–337. •In
R v Board of Visitors of Dartmoor Prison ex p Smith,
28[1987] QB 106. the Court of Appeal heard an appeal on a public law issue, despite the fact that the applicant for judicial review no longer had an interest in the outcome. The Court gave as its only reason that the case raised ‘questions of general public interest’.
29[1987] QB 106 at 115. •In
Bowman v Fels,
30[2005] 1 WLR 3083. the Court of Appeal dealt with the interpretation of a statute in the context of private law litigation, despite the fact that the provision in question created a criminal offence.
31[2005] 1 WLR 3083 at [18]. The Court emphasised the importance and difficulty of the issue and the desire of the parties and the interveners in the litigation that it should be decided.
32[2005] 1 WLR 3083 at [15]. This point is emphasised in Harb v King Fahd Bin Abdul Aziz [2006] 1 WLR 578 at [29] and [54]. •In
Floe Telecom Ltd v Office of Communications,
33[2006] 4 All ER 688 at [6]–[7]. the Court of Appeal dealt with an issue that did not arise on the appeal because it was important for future cases and appropriate to deal with it.
•In
R (W) v Commissioner of Police for the Metropolis,
34[2007] QB 399 at [17]. the Court of Appeal listed four factors that persuaded it to deal with the issue: (i) the issue was one of interpretation that was a matter of general importance; (ii) the parties were able to consider the issues in the context of particular facts and invited the court to do so; (iii) the authority of the decision of the Administrative Court that was under appeal would otherwise remain in limbo as a precedent; and (iv) the issues were clear cut.
Procedural issues
7.178These are akin to public law issues. In
Don Pasquale (a firm) v Customs and Excise Commissioners,
35[1990] 1 WLR 1108. the Court of Appeal agreed to hear an appeal on a procedural issue concerning the deposit that could be required of a taxpayer who was pursuing an appeal on his liability for VAT. The contentious issue between the parties had been settled. Lord Donaldson MR considered that this issue had some analogy with a public law issue and was influenced by the fact that it would otherwise be very difficult to bring the issue before the Court of Appeal again.
36[1990] 1 WLR 1108 at 1110. The Court imposed a condition that the Commissioners must not seek an order of costs against the taxpayer.
Permission to appeal
7.179Permission to appeal may be refused on the ground that the issue raised is an abstract one.
37Scott Baker J in R (Begum) v Social Security Commissioners [2002] EWHC 401 (Admin) at [22].