COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon Mr Justice Hooper
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MANCE
LORD JUSTICE LATHAM
| MARKANDU SIVASUBRAMANIAM||Appellant|
|- and -|
|WANDSWORTH COUNTY COURT|
- and -
MANAGEMENT OF GUILDFORD COLLEGE OF FURTHER & HIGHER EDUCATION & ANOR
|LORD CHANCELLOR'S DEPARTMENT||Intervener|
Mr Philip Sales (instructed by Lord Chancellors Department) for the Intervener
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Phillips MR :
This is the judgment of the court
Proceedings in the Wandsworth County Court.
"According to our records this matter was settled on the 22nd February 1999."
The letter went on:
"Unfortunately this file has been destroyed as the action is over 3 years' old and the case has been closed. To reopen the case you will have to apply on notice on an N244 Application Form (see enclosed) and pay a fee of £50.00. You will also need to supply any documentation you have regarding this matter."
"Your application received on 04 May 2001: the Circuit Judge has considered the file and notes that a final order dismissing the claims was made on 22 February 1999, this concluded the proceedings numbered Wt604012 and so you may not issue your proposed application variously dated 3 or 4 May 2001 in these proceedings as the subject matter of your application appears to be the same as the subject matter of the proceedings."
"Your application dated 25 June 2001 was referred to the Circuit Judge who was unclear as to what you are appealing since this case was dismissed in February 1999. If you wish to pursue a case against Unison then you will have to issue fresh proceedings.
Enclosed is your application along with a refund of £50.00."
"I have considerable doubts as to whether judicial review is an appropriate remedy. I shall assume for the purposes only of argument that the claimant can proceed by way of judicial review. To succeed the claimant would have to show that there was an arguable case that the judge who decided, in effect, that the application to reopen the case failed had made an error of law or reached a conclusion which no reasonable Judge could have reached. There is no such arguable case.
I note that the claimant suggests that the letter is "fictitious and not valued" because the name of the Judge is not mentioned. Indeed the claimant states that "This acts of court official fraudulent and forgery which are in fact criminal offence." Whilst accepting that it would have been better if the name of the judge had been revealed, the failure to do so could not arguably result in the decision being quashed. As to the complaint about the failure to draw up a formal court order, that is not something which could arguably lead to the decision being quashed.
For these reasons this application for permission to apply for judicial review fails."
Proceedings in the Kingston upon Thames County Court
"We have been instructed by the above named client in respect of his case which we understand is being heard on the 24th August 1998 at 10.00 a.m. Our client wishes to withdraw his application as he is at present detained at the Springfield Hospital under section 3 of the Mental Health Act. Under the circumstances our client is not in a position to conduct the matter. In the light of this we look forward to receiving confirmation that the above hearing has been vacated."
That letter was sent to the defendants' solicitors asking whether they agreed to the request. There having been no reply, a judge on 24 August 1998 granted the claimant leave to withdraw the application.
The issues of principle
i) If an unsuccessful party to a decision by a Circuit Judge seeks judicial review of the decision rather than pursuing the alternative remedy of an appeal to the High Court or, in the case of a second appeal, to the Court of Appeal, should that application be entertained?
ii) Where an appeal court has refused permission to appeal against a decision of the lower court and the unsuccessful party then seeks judicial review, should that application be entertained?
The legislative framework
Destination of appeals from decisions of the County Court
"Subject to the provisions of this section and the following provisions of this Part of this Act, and to any order made by the Lord Chancellor under section 56(1) of the Access to Justice Act 1999, if any party to any proceedings in a county court who 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 Civil Procedure Rules".
i) subject to two exceptions, an appeal from a decision of a County Court shall not go according to the general rule but shall go to the High Court (Art.3(1));
ii) subject to the same exceptions, where the decision to be appealed is a decision made by a District Judge, the appeal shall go a Judge of the County Court (Art.3(2));
iii) the exceptions are
a) where the decision is a final decision made in a claim allocated to the multi-track under the Civil Procedure Rules or in certain specialist claims (such as mercantile claims) (Art.4) and
b) where the decision itself was a decision made on appeal (other than the decision of an officer of the court authorised to assess costs) (Art.5);
iv) in this context, "decision" includes any judgment, order or direction (Art.1(2)).
The permission requirement
S.54 of the Access to Justice Act 1999
"(1) Rules of court may provide that any right of appeal to –
(a) a County Court;
(b) the High Court;
(c) the Court of Appeal,
may be exercised only with permission.
(2) This section does not apply to a right of appeal in a criminal cause or matter.
(3) For the purposes of subsection (1) rules of court may make provision as to-
(a) the classes of case in which a right of appeal may be exercised only with permission,
(b) the court or courts which may give permission for the purposes of this section,
(c) any considerations to be taken into account in deciding whether permission should be given, and
(d) any requirements to be satisfied before permission may be given,
and may make provision for different circumstances.
(4) No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).
(5) For the purposes of this section a right to make an application to have a case stated for the opinion of the High Court constitutes a right of appeal.
(6) For the purposes of this section a right of appeal to the Court of Appeal includes –
(a) the right to make an application for a new trial;
(b) the right to make an application to set aside a verdict, finding or judgment in any cause or matter in the High Court which has been tried, or in which any issue has been tried, by a jury."
Part 52 of the Civil Procedure Rules 1998
"(1) An appellant or respondent requires permission to appeal –
(a) where the appeal is from a decision of a Judge in a County Court or the High Court, except where the appeal is against –
(i) a committal order;
(ii) a refusal to grant habeas corpus; or
(iii) a secure accommodation order made under section 2 of the Children Act 1989; or
(b) as provided by the relevant practice direction.
(Other enactments may provide that permission is required for particular appeals.)
(2) An application for permission to appeal may be made-
(a) to the lower court at the hearing at which the decision to be appealed was made; or
(b) to the appeal court in an appeal notice.
(3) Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court.
(4) Where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing.
(5) A request under paragraph (4) must be filed within 7 days after service of the notice that permission has been refused.
(6) Permission to appeal will only be given where-
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard.
(7) An order giving permission may –
(a) limit the issues to be heard; and
(b) be made subject to conditions."
"(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of a County Court or the High Court which was itself made on appeal.
(2) The Court of Appeal will not give permission unless it considers that:
(a) the appeal would raise an important point of principle or practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it."
The legislative purpose of restricting the right of appeal
"Before exploring the two remaining avenues in detail, we considered what principles should underlie a civil appeals system (Chapter 2). We confirmed that the principles identified by Lord Woolf as those which the civil justice system should meet in order to ensure access to justice were fully applicable to appeals and we have sought to reflect them in our recommendations. We also considered the question whether there should be a right of appeal in civil cases. Our conclusion is that any dissatisfied party is entitled to have their case looked at by a higher court so that it can consider whether there appears to have been an injustice. In that event, it will allow an appeal to proceed but the appeal system should not be seen as an automatic further stage in a case.
The purpose of an appeals system, in our view, is not simply to correct wrong decisions as far as they concern the parties to the dispute; there is also a public purpose which is to ensure confidence in the administration of justice and, in appropriate cases, to clarify the law, practice and procedures and to help maintain the standards of first instance courts and tribunals.
The application of the Woolf principles led us to the conclusion that more than one level of appeal cannot normally be justified. In addition, we concluded that certain appeals which now reach the CA should normally be heard at a lower level provided that they are heard by a court or judge with a superior jurisdiction to that which made the first instance decision. Such appeals could reach the CA, however, where there is an important point of principle or practice or one which for some other special reason should be considered by the CA."
The submission of the Lord Chancellor's Department
Judicial Review and the County Court
"I am satisfied that in a proper case this court has power by order of certiorari to bring up and quash the order of the county court judge made without jurisdiction in that behalf (see Kemp v. Balne (1) (1844), 1 Dow. & L. 885; and Colonial Bank of Australasia v. Willan (2) (1874), L.R. 5 P.C. 417 at pp. 442 and 450)."
"Subject to the provisions of any other Act relating to county courts, no judgment or order of any judge of county courts, nor any appeal proceedings brought before him or pending in his court, shall be removed by appeal, motion, certiorari or otherwise into any other court whatever, except in the manner and according to the provisions of this Act mentioned."
"The leading case on the matter is Ex p. Bradlaugh (1878), 3 QBD 509, where Mellor, J., put the principle in these words (1878), 3 Q.B.D. at p.513:
'It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction. The consequence of holding otherwise would be that a metropolitan magistrate could make any order he pleased without question.'
To the same effect is a number of cases including, coming to quite recent times, R. v. Worthington-Evans, Ex p. Madan  2 Q.B. at p.152 and Re Gilmore's Application  1 Q.B. at p.588. I am quite satisfied that certiorari will lie against a county court judge if he has acted without jurisdiction, notwithstanding the sections of the County Courts Act, 1959, to which I have referred."
"… the distinction between an error which entails absence of jurisdiction - and an error made within the jurisdiction - is very fine. So fine indeed that it is rapidly being eroded. Take this very case. … [The judge's] error can be described on the one hand as an error which went to his jurisdiction. … By holding that it was not a 'structural alteration … or addition' he deprived himself of jurisdiction to determine those matters. On the other hand, … it can plausibly be said that he had jurisdiction to inquire into the meaning of the words … and that his wrong interpretation of them was only an error within his jurisdiction, and not an error taking him outside it. … I would suggest that this distinction should now be discarded. The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. … The way to get things right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it. … I am of opinion that certiorari lies to quash the determination of the judge, even though it was made by statute 'final and conclusive.'"
"The judge is considering the words … which he ought to consider. He is not embarking on some unauthorised or extraneous or irrelevant exercise. All that he has done is to come to what appears to this court to be a wrong conclusion upon a difficult question. It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a wrong decision on a point of law. Accordingly, I take the view that no form of certiorari is available to the tenant."
"….as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity."
Lord Diplock went on to suggest, however, that the reasoning in Anisminic did not apply where the decision sought to be reviewed was that of a court of law:
"But there is no similar presumption that where a decision-making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic  2 AC 147; but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law, fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide."
Failure to seek permission to appeal.
Harley Development Inc v Comr of Inland Revenue  1 WLR 727, 736C per Lord Jauncey; R v Inland Revenue Comrs, ex p. Preston  AC 835, 852D-F per Lord Scarman, and 862D and F per Lord Templeman; R v Secretary of State for the Home Department, ex p. Swati  1 WLR 477; R v Birmingham CC, ex p. Ferrero Ltd  1 All ER 530, 537c per Taylor LJ; Allen v W. Yorkshire Probation Service  EWHC Admin 2.
What these authorities show is that judicial review is customarily refused as an exercise of judicial discretion where an alternative remedy is available. Where Parliament has provided a statutory appeal procedure it will rarely be appropriate to grant permission for judicial review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused.
The position where the appeal court has refused permission to appeal