England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR JUSTICE TURNER)

		Royal Courts of Justice Strand London WC2 Tuesday, 19th June 2001

Tuesday, 19th June 2001

1. LORD JUSTICE KEENE: This is an application for permission to appeal the decision of Turner J sitting in the Administrative Court of the Queen's Bench Division on 30th March 2001 when he refused the applicant permission to apply for judicial review.
2. The facts of this case go back many years but they can be summarised briefly as follows. In 1991 the applicant had a bankruptcy order made against him. That seems to have been the result of a default judgment which was obtained against him by some solicitors who had acted on his behalf. Subsequent applications by the applicant to have the bankruptcy order annulled were refused in 1992 and 1994. Various appeals by him were unsuccessful, including one against an order by Rattee J made on 12th April 1995 to the effect that the applicant required the leave of the district judge before making any further applications to rescind or appeal the bankruptcy order.
3. In September 2000 the applicant sought leave to bring a further application to annul the bankruptcy order. That was dismissed by District Judge Polden sitting at Tunbridge Wells County Court on 18th October 2000. The applicant then applied on 25th October 2000 for leave to make an application for an order that the trustee in bankruptcy assign his right to set aside the bankruptcy to the applicant. That application was dismissed by District Judge Polden on 31st October 2000. On 24th November 2000, District Judge Polden granted an application by the trustee in bankruptcy and ordered possession and sale of the applicant's home.
4. The applicant then applied for permission to bring judicial review proceedings against the Tunbridge Wells County Court in respect of the decisions of District Judge Polden on 18th and 31st October 2000. Some of the matters which it sought to raise in the judicial review proceedings concerned the basis for the original bankruptcy order in 1991, it being asserted, as it has been today, that that order had been improperly obtained. It is sought to say, as Mr Charity who has appeared on behalf of the applicant today has told me, that the default judgment itself originally claimed was premature and could have been set aside and that the bankruptcy order itself was flawed.
5. The application for permission to seek judicial review came before Turner J on 30th March 2001. The judge held that the matters complained of were ones for normal civil proceedings and were not matters of public law suitable for judicial review. Moreover, there were procedures available for challenging decisions such as those of District Judge Polden, and judicial review was therefore not appropriate. Turner J dismissed the application.
6. This morning Mr Charity on behalf of the applicant tells me that the orders of the district judge were indeed appealed in the normal way. Both those and the later possession order came before a High Court Judge, Neuberger J, on 8th June 2001. I understand that those appeals were dismissed. Mr Charity tells me that leave to appeal to the Court of Appeal is being sought. However, he says that there is a matter which properly falls within the purview of judicial review and he says that the complaint being made in these proceedings is about the conduct of the lower court. It is argued that the district judge has always failed to look at the underlying merits of the bankruptcy order. The district judge apparently takes the view that issue estoppel applies. Mr Charity acknowledges that an attack upon that position adopted by the district judge will be one of the matters raised in the normal civil appeal process.
7. I find it impossible to distinguish between the matters which it is sought to raise in the normal civil appeal process and those which are put forward today as qualifying this as something suitable to be dealt with by way of judicial review. Judicial review, in my judgment, is not appropriate in a case like this and not to be run in parallel with the conventional civil appeals. That would indeed be seeking two bites of the same cherry. I find myself in total agreement with Turner J. There are proper appeal mechanisms in existence for dealing with bankruptcy decisions. Those mechanisms have been and are still being employed by the applicant. Judicial review is of course a discretionary remedy and it will not be employed where there is some more suitable alternative process available. That is exactly the situation here.
8. It follows that there is no prospect of a successful appeal against Turner J's decision which was soundly based. In those circumstances this application must be dismissed.
(Application for permission dismissed)