Case No: B4/2013/0851/2
Neutral Citation Number: [2013] EWCA Civ 1170
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Swansea Justice Centre
Mr Recorder Felstead
UV12C00215
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/10/2013
Before :

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE UNDERHILL
and
THE RIGHT HONOURABLE LADY JUSTICE MACUR DBE
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Between :

	M (Children)		

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Mr Charles Geekie QC & Miss Lucy Leader (instructed by City and County of Swansea & T Llewellyn Solicitors) for the Applicant
Ms Ruth Henke QC & Ms Sara Rudman (instructed by Goldstones Solicitors) for the Respondent

Hearing date : 17 September 2013
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Judgment
Lady Justice Macur DBE : 
1.	  This appeal was launched with the permission of the single judge following renewed oral application made on behalf of CCS, a local authority and the Children’s Guardian of R and K (minors), both represented by Mr Geekie QC. Directions were given which included invitation to the intervener to appear and be represented in the appeal.
2.	  In broad terms, the proposed grounds of appeal attacked the refusal of the first instance judge, Mr Recorder Felstead, to make findings against the intervener, J, in relation to incidents of sexual abuse alleged by the child K or to categorise admitted behaviours as having sinister sexual overtones or abusive connotation. 
3.	  The mother supported the appeal but was unrepresented. She has not appeared today. Miss Henke QC has argued the case on behalf of the intervener, J.
4.	  The appellants do not seek to set aside the order made in the court below. The outcome achieved was entirely in accordance with their final submissions. The recorder made a residence order in favour of the mother with a twelve month supervision order in favour of CCS.
5.	  Having read the appeal bundles, including  skeleton arguments filed on behalf of appellants and intervener, this Court notified Counsel that   it  wished to be addressed on the preliminary issue of jurisdiction, namely whether the negative findings of the recorder were capable of valid appeal process, they not founding nor comprising a final order of the court below. 
6.	  We heard argument on this preliminary point and determined at the outset that the appeal should not be allowed to proceed since success or otherwise would have no impact upon outcome. Consequently we dismissed the appeal indicating that reasons would follow in judgment to be handed down.
7.	 This was an appeal from the County Court. Section 77 of the County Courts Act 1984 provides that:
“Subject to the provisions of this section and the following provisions of this Act, if any party to any proceedings in a county court is dissatisfied with the determination of the judge or jury, he may appeal from it to the Court of Appeal in such manner and subject to such conditions as may be provided by the Civil Procedure Rules.”
8.	  The relevant Civil Procedures Rule is CPR 52.10(2) which provides  that the  appeal court has power to, 
“(a) affirm, set aside or vary any order or judgment made or given by the lower court;
 (b) Refer any claim or issue for determination by the lower court;
(c) order a new trial or hearing;
……… 
9.	   Mr Geekie QC argues that, as a matter of principle, the determination of the court below, (or “judgment or order of the High Court” if the appeal proceeded from the High Court and was subject to Section 16 of the Senior Courts Act 1981) must include those findings of fact which are not crucial to outcome of proceedings or the form or enforceability of final order, particularly if they interfere with reputation and rights of others incapable of redress elsewhere. He concedes that nevertheless the appellate court retains the discretion to refuse to entertain an appeal which may reasonably be regarded as academic.
10.	   He seeks to bolster his argument by factual example quite removed from the facts of this case. That is,   findings against an individual accused of sexual assault against his neighbour’s children with far reaching implications for his personal reputation and family life.  Granted intervener status but with no interest in outcome he, personally, is incapable of overturning  the finding however adverse the consequences, unless the terms “determination”, “judgment” or “order” incorporates all findings of fact .
11.	  Miss Henke QC argues that there is no jurisdiction to entertain an appeal relating to findings of fact, save those made in a split hearing which will inform/ be determinative of the result of the proceedings albeit not incorporated in a formal order. The Court of Appeal would then have jurisdiction to hear an appeal without waiting for the conclusion of the split hearing. See Re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790. 
12.	  Both cite Cie Noga d’Importation et d’Exportation SA v Australia and New Zealand Banking Group Ltd and others [2002] EWCA 1142, [2003] 1 WLR  307 to support their respective arguments.
13.	  Miss Henke relies the judgment of Waller LJ at paragraphs 27 and 28: 
“Lake v Lake [citation [1955] P 366] properly understood means that if the decision when properly analysed and if it were to be recorded in a formal order would be one that the would-be appellant would not be seeking to challenge or vary, then there is no jurisdiction to entertain an appeal…..The court only has jurisdiction to entertain “an appeal”. A loser in relation to a “judgment” or “order” or “determination” has to be appealing if the court is to have any jurisdiction at all. Thus if the decision of the court on the issue it has to try….is one which a party does not wish to challenge in the result, it is not open to that party to challenge a finding of fact simply  because it is not one he or she does not like.” ;
“There is no difficulty where the only issue to be decided at a preliminary stage is one of fact. It is that issue on which the court has been asked to pronounce judgment and, even if the court exercises its power to give judgment against a party on the whole of the case, since that was the issue the court was asked to determine, and since it is that issue on which the whole case ultimately turns, it will be the determination of that issue which will be the relevant judgment or determination so far as jurisdiction is concerned. ………….If however in that case the court had gone on to makes a decision in relation to the legal consequences which one party would not seek to challenge, in my view that party would not be entitled simply to appeal the findings because it did not like the reason for the decision in his or her favour.”
14.	  Mr Geekie QC alights upon that part of paragraph 28 in which Waller LJ said:
“If…the findings of fact might be relevant to some other proceedings…it might be appropriate to make a declaration so as to enable a party to challenge those findings and not find him or herself prejudiced by them….The fact that there may be circumstances shows the breadth of the discretion that the court has in relation to declaring declarations..” 
15.	  Both Counsel have referred to subsequent case law with a view to ‘interpreting’ or ‘amplifying’ the judgment to the advantage of their own argument.  In my judgment neither have succeeded in demonstrating other than Cie Noga remains good law, undiluted or distinguished by subsequent authority which have dealt with the issue of appellate jurisdiction.  
16.	  Ms Henke QC seeks to deploy In Re H (Abuse: Oral Evidence) [2011] EWCA Civ 741 and In Re B & H (Children) [2009] EWCA Civ 228.  In the former Thorpe LJ questioned whether the right to appeal survived a successful defence of care proceedings in relation to “findings of fact which are somewhat discernible within the judgment”. In the latter Lloyd LJ refused an intervener permission to appeal since although findings of fact had been made against her “it was hard to imagine in what circumstances any adverse order could have been made against her at the conclusion of the proceedings and, in that case, no order had been made”.
17.	  However, neither case incorporated the findings of fact as a declaration within the order. 
18.	  Mr Geekie QC relies upon Re A (Fact-finding: Hearing: Judge meeting with child) [2012] EWCA 185  at paragraph 44 and 45 which relate to the careful drafting of schedule of issues for the purpose of case management at first instance, and any subsequent consideration by the Court of Appeal as to the adequacy and accuracy of the order drawn.  I do not see how this furthers his argument that findings of fact, positive or negative, are capable of founding appeals by successful parties or others who have no standing or interest in respect of outcome.  I am not persuaded that this is the thrust of Thorpe LJ’s commentary nor can it reasonably be interpreted as such.
19.	  I do not accept Mr Geekie’s argument which suggests, as I understand it, that the  jurisdiction of this court to entertain an appeal has been enlarged, or could be so, by exercise of discretion to allow scrutiny or review of unpalatable findings to a victor or third party against whom no enforceable order can be drawn.
20.	  I do not accept Miss Henke’s argument if, as it seems so emphatically stated, it suggests that a discrete declaration of fact on the face of the order which does not determine outcome is not capable of founding appeal. 
21.	 The principles of appellate jurisdiction to be derived from Cie Noga are identified in paragraphs 27 and 28 of the judgment as indicated above. They are clear. Findings of fact do not comprise determination, order or judgment unless they concern the issue upon which the determination of the whole case ultimately turns or are otherwise subject of a declaration within the order.
22.	  Neither Counsel was invited to contemplate the restrictions that should inhibit the “breadth of discretion that the court has in relation to granting declaration”. This exercise would entail a far wider ranging and detailed consideration than is necessary for the disposal of this case. Waller LJ in Cie Noga declined to do so whilst suggesting that “If an issue estoppel might arise that  ...may provide a basis”. 
23.	 Quite clearly, such a declaration carries significant import in relation to finality of proceedings which should render them the rare exception rather than the rule. They should not be incorporated without the most careful judicial consideration as to consequences and effect.
24.	  In this case, Mr Geekie QC seeks to assert such a ‘declaration’ in the order sealed by the court below which at paragraph 1 , somewhat clumsily in my opinion, “orders” : “[t]hreshold is found as per the Particularised Threshold document annexed hereto save that (a) paragraph 7 is not proven in its entirety; (b) paragraph 8.2 is found to the extent that the behaviours outlined in the same amounted to neglect and that there was no sexual misconduct on the part of the intervener…..”. On investigation it transpires that this order reflects the draft prepared and submitted by Counsel.
25.	It is demonstrably otiose in terms of being “an order”. A recital to indicate which findings of fact were made to found the order, recorded on an annexed document is unobjectionable and entirely good practice. It demonstrates the need for judicial scrutiny of the draft order intended to incorporate the judgment of the court.
26.	  Even if this paragraph is properly classed as a declaration it is certainly not a declaration as envisaged by the court in Cie Noga. There is no finding of fact “pregnant with legal consequences” (See para 28). Its presence in the order does not rescue the argument that this appeal should continue.
27.	  The fact that permission to appeal was granted by the single judge reflects the absence of any argument before him regarding jurisdiction.  
28.	  I am entirely unimpressed with the argument that K’s reported upset at the recorder’s failure to make findings against the intervener, or that of any other complainant in similar circumstances, elevates a negative finding to one “pregnant with legal consequences” . Negative findings denote a lack of evidential support for allegations.  
29.	  The appeal is academic. The criticisms Mr Geekie would make of the recorder’s handling of the case do not suffice to comprise a compelling reason why this Court should proceed. 
30.	  I find Ms Henke’s argument that the appeal should not, as a matter of our discretion, proceed is unassailable. The final order in this case was that sought by the Appellants. There is no order, judgment or determination for appeal. In that there is any declaration, it does not merit scrutiny.
31.	  I would dismiss this appeal without consideration of the merits of the grounds of appeal.

Lord Justice Underhill:
32.	I agree that this appeal should be dismissed.  In my view it does not, in the     circumstances of this case, follow from the fact that the Recorder included in the body of his order the findings (or non-findings) that the Appellants wish to challenge that they can be the subject of an appeal.  Their inclusion in the body of the order was wrong because they did not represent the outcome of the case and were not “pregnant with legal consequences” for some further stage (as in the case of a split hearing).  Like Macur LJ, I see no need in this case to consider the scope of the discretion referred to by Waller LJ in the Cie Noga case [2003] 1 WLR 307 to grant a declaration in order to give a party who might be prejudiced by a finding the hook for an appeal.  On no view could that discretion extend to a case of this kind, where the failure to make the findings in question prejudices no-one’s rights.     
Lord Justice Longmore:

33.       I agree with both judgments.