England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE STANLEY BURNTON)

		Royal Courts of Justice Strand London, WC2 Wednesday, 11 December 2002

1. LORD JUSTICE TUCKEY: This is an application by Graham Farmer for permission to appeal from Stanley Burnton J's refusal to grant him permission to apply for judicial review of a decision of the respondents, the government agency responsible for the sale and redevelopment of the Dome. The decision in question, announced on 19 December 2001, was that the respondents had decided to enter into exclusive negotiations for the sale of the Dome to a company called Meridian Delta Ltd. The applicant is the moving force behind an organisation (he describes it as "an aspiration") called the Newe Dome Experience, which he tells me is intended, if its aspirations can be realised, to become a public company. The applicant in the name of Newe Dome had previously expressed interest in the Dome and his complaint is that the decision made on 19 December had unlawfully excluded Newe Dome.
2. The application for judicial review was made at the beginning of April 2002, so it was out of time. Permission was first refused on paper and then at an oral hearing by Stanley Burnton J on 20 May 2002. That gave the applicant seven days to appeal to this court but he did not do so until 1 November 2002, so he was way out of time and needs an extension of time to enable him to appeal.
3. The history of the Dome and the attempts to dispose of it are a matter of record and considerable public interest. In November 2000 Newe Dome became interested in proposing what it considered to be an environmentally friendly and English solution to the problem. Various imaginative ideas and plans were generated and sent to the respondents in the course of 2001, to which the response was (and I summarise) "Interesting, but we can only discuss this further if you can demonstrate that you have a viable business plan, partners and backers who will finance the proposal, and an organisation which can deliver it." It is clear from the correspondence that Newe Dome could not demonstrate any of those things at that time. Thus, on 10 December 2001 the applicant wrote to the respondents in response to their queries about finance and so on:

"I have been asked to fax the DTI in relation to a small business development grant in order to progress full-time with The Newe Dome Experience, but quite frankly I am not holding on to a lot of hope that they will be able to help within an imminent time frame.

Currently Lloyds won't help me beyond a £100 overdraft and so obviously I am unable to attract even the small sums of money necessary to proceed with the concept unless the DTI can help develop the Newe enterprise for the future.

It has been a long and profitless year for me personally since I began The Newe Dome Experience .... but in truth, the hundreds of people and firms I have approached in that time aren't really all that motivated by the pollution question marks and unsustainable impact of society's contribution to climate change, only that it is more interesting to make the money today and enjoy life as much as possible.

Many thanks for your patience with the poor man's approach in any event, it has been an enjoyable challenge in which I feel I have become quite an authority on the Dome past, present and future .... Best of luck .... "

The decision in question in these proceedings was made eight days later.

4. Meridian Delta is a consortium which includes the Anschutz Entertainment Group, a United States group headed by Mr Philip Anschutz. Broadly, it seems that the consortium will take a long, rent-free lease of the Dome and the surrounding land on terms that it develops the Dome into a sports and live media arena and the surrounding land into shops, houses and community facilities, and shares the profit of the development with the government. The respondents have filed a notice with this court which says that on 29 May 2002, after the applicant's time for appealing the judge's order expired, the parties signed more than 20 complex and lengthy multi-party contracts, partly to implement this proposal which, as a result of the negotiations which had taken place, had by then been partly agreed.
5. Stanley Burnton J dismissed the applicant's application principally because it had no merit: the respondents had made a sensible commercial decision which could not be challenged by judicial review. He also dismissed it because the applicant had no standing to complain about the decision and because it was out of time.
6. The applicant says that he accepted Stanley Burnton J's decision at the time but had second thoughts when he discovered from newspaper articles, which first appeared at the end of June 2002, that Mr Anschutz was under investigation in the United States for his rôle in the running of Qwest Communications, one of the casualties of the telecoms crash in the United States whose accounts had been questioned, and his for dealings in shares in that and other companies. The emergence of these allegations caused the applicant to revive his application for judicial review and explains his delay in appealing to this court.
7. These allegations have, however, nothing to do with the decision which the applicant seeks to impugn which was made in December 2001, long before they emerged. Judicial review must be aimed at a particular decision. Judicial review proceedings do not provide the cover to make free-ranging generalised complaints of the kind which the applicant now makes.
8. So, sticking with the decision in question, I agree with the judges below that there is no merit in the applicant's attack on it. It is perfectly reasonable for a commercial party, whether it is a government agency or not, to decide to negotiate with another commercial party to the exclusion of others who might be interested in the transaction. This is particularly so if that party has been chosen as a result of an extended period of market testing, as was the case here, and the negotiations were likely to be complex and therefore very costly in terms of legal and other professional advice and assistance and time.
9. Newe Dome obviously could not get to first base, so neither they nor the applicant have any legitimate cause of complaint. This is quite apart from the question of whether the applicant has any standing in the matter, which I very much doubt.
10. But a further objection to the application to this court is that it is way out of time in circumstances where it is quite obvious that considerable prejudice would be caused if I were to grant permission to appeal. The emergence of stories about Mr Anschutz may explain the delay but it does not provide a relevant excuse for it. The fact is that the applicant had accepted Stanley Burnton J's decision. He was right to do so. He cannot now turn round and explain his delay by reference to things which do not in any way undermine that decision. It is obvious from his submissions this morning that the applicant is well-intentioned and feels strongly about the matter, but it would not be doing him any favours to grant him permission for an appeal which I consider to be hopeless.
11. For these reasons I refuse to grant an extension of time and would in any event have refused permission to appeal if I had granted such an extension.
12. The respondents, who instructed counsel to put in a notice in response to this application, ask me to order the applicant to pay their costs in the sum of £5,000. I do not think it would be right to make such an order. Applicants for permission to appeal should not expect to be faced with having to pay a respondent's costs, other than in exceptional circumstances. This case is not exceptional. The court is of course grateful for any assistance that a respondent may choose to give it, but it should not expect the applicant to have to pay for it. I have no doubt that the thinking behind this application is partly to warn the applicant that if he persists to litigate against the respondents they will not treat him as generously as they did before the judge, when they did not ask for costs. I think that is a warning that he should take to heart. I suspect that next time round, if there is a next time round and the respondents are in a position to ask for their costs, they will do so, and the judge is likely to order the applicant to pay costs.
ORDER: Application refused