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
ADMINISTRATIVE COURT LIST
(MR JUSTICE COLLINS)

		Royal Courts of Justice Strand London, WC2A 2LL
		21 June 2004

1. LORD JUSTICE WARD: By an application made on 17 December 2003, Mr Ghadami applied for judicial review of a resolution of the Planning Committee of Harlow District Council, made on 18 September 2003, resolving to grant planning permission for a large development of the shopping centre in Harlow. It would be subject to completion of a section 106 agreement. Mr Ghadami's challenge alleges misconduct by the Committee, a failure to acquire an environmental impact assessment, departure from the statutory development plan and even bias. He is a trader affected by this redevelopment scheme.
2. That application for judicial review was considered on the papers by Sullivan J on 22 April 2004. He made these important orders:

(1) The application for judicial review, which was made on the last day before the expiry of the usual three months, should be stood over to be considered with the review to follow if permission is given (a "rolled up" order).

(2) The defendant and the developer (the interested party) should serve their evidence within 28 days of the date of the order (ie 20 May 2004).

(3) The claimant should file any evidence in reply within 14 days thereafter which would take matters to 3 June 2004.

(4) Importantly, he directed in paragraph 5 of the order that the claimant had to provide a core bundle for the hearing. That had to be carried out at a sufficiently early stage to enable the parties to comply with the requirements of Practice Direction 54.15, which related to the service of skeleton arguments, cross-referenced to the core bundle.

(5) There was liberty to seek further directions.

The judge added these observations. First, he indicated, and I now readily understand why, that the case put before him appeared to be "unduly prolix and the documents unnecessarily voluminous". He observed that:

"The wood must be identified for the hearing, hence the need for a core bundle and skeleton arguments".

He also observed that it was particularly important that the skeleton arguments give realistic estimates of the time required for pre-reading and for the hearing.

3. It would appear from the witness statement of Mr Kaplan, senior clerk to counsel for the defendants and the interested party, that (as is common practice) he was called by the listing officer of the Administrative Court on 6 May 2004 to try to fix a hearing date for this matter. In a note prepared for the court by the listing officer, it may even have been on 27 April 2004, that the office first attempted to obtain a time estimate for this hearing. The listing office also attempted to contact the clerk to Mr Mark Lowe QC, whom they understood to be instructed in this matter as counsel for the claimant. A few days later the clerk informed the listing office that counsel was not available. So it was that the listing office left a message for the claimant's solicitors asking who was instructed. There was no response. There was a further message on 5 May 2004, again asking for information, failing which the court would list the matter to take into account the defendant's counsel's availability only.
4. Mr Kaplan was called before the listing office. Counsel in his chambers had told him that 1½ says would satisfactorily conclude the case. Accordingly, the listing officer fixed a date for hearing on 23 and 24 June 2004. On 10 May 2004 the listing office wrote informing the parties that the case had been listed for hearing on 23 June 2004, but also informing them that only 30 minutes had been allowed to hear it. This is because apparently the computer cannot contain any other information than that. It does not much matter.
5. The claimant's solicitors responded that they wished to instruct Mr Horton QC, but that he would not be available then. They gave the dates on which he was available, the only date during this term being between the 28 June and 2 July 2994. He was also available during the long vacation or at the end November. As between counsel's clerks, the usual courtesies were properly followed. Attempts were made to find a convenient date for both leaders but that was not possible due to Mr Straker's commitments at other times up to the vacation. The applicant applied to the court to vacate the fixture. That came before Collins J on 24 May. He refused the application and Mr Ghadami has appealed, with permission that that I granted last week.
6. What troubled me then and remains troublesome is the fact that this listing took no account of the full effect of Sullivan J's directions. It is important that it be understood that I unhesitatingly accept that there was no attempt being made, by or on behalf of the defendant or the interested party, to steal a march on the claimant by deliberately misleading the court or the listing officer in any way whatsoever. I readily accept from Mr Kaplan's written statement that he was following what he understood to be the usual practice.
7. It is, however, apparent from the note prepared by the listing officer for the court that, although the terms of Sullivan J's order appeared in part on the listing office computer, paragraph 5 of the order, for inexplicable reasons, was not available to the listing officer when fixing the case. The listing officer therefore did not appreciate the specific direction Sullivan J had given for the preparation of the core bundle and the subsequent skeleton arguments which were to serve the very useful purpose of assisting the court to grapple with the complexities of this case.
8. If therefore one works backwards from the date of the fixture, 23 June 2004, it is at once apparent that the date fixed for the hearing comes well before any date that was envisaged by Sullivan J. The rules require 21 working days for the service of a skeleton argument before the hearing. If working days excludes Saturdays or Sundays, the date for hearing could not be fixed for days, if not weeks, after 23 June. That has had the unfortunate consequence that Mr Ghadami finds himself in these difficulties.
9. I appreciate the strength of the opposition to Mr Ghadami's appeal. This is an appeal against a case management decision of Collins J, a judge than whom few are more experienced than he with the workings of the Administrative Court. This court should, therefore, be slow, very slow, to interfere with an exercise of his case management powers and discretion. I acknowledge that entirely.
10. I also acknowledge that Mr Ghadami's case was presented to him simply on the basis of the unavailability of counsel of his first choice, Mr Horton QC. It is apparent from looking at the transcript of what transpired before Collins J on 24 May 2004, that the judge soon became aware that the time-tabling was, as he put it in paragraph 58, "relatively tight". As one reads through that transcript, he took clearly on board (see paragraph 96) that there were two aspects to the application. The first was the wish for counsel of his choice to be instructed, and the second the pressure of time to get the case in proper order for a hearing on 23 June 2004. He heard from Mr Fraser-Urquhart, counsel instructed on behalf of the defendant Planning Committee as junior to Mr Straker QC who was instructed to lead for the council.
11. As I understand the exchange at paragraphs 104 and 105 of the transcript, it was accepted that there was a certain validity in the argument that sauce for the goose was sauce for the gander. The judge seems to have accepted that the time-tabling was tight, although, in Mr Fraser-Urquhart's submission, workable. The judge eventually was of the view, as expressed in paragraph 121, that the only reason why he had concerns was because of the tightness of that time-tabling. He seemed willing to countenance putting the matter back "a bit" provided it could be heard this term. He would not countenance it going beyond the end of term.
12. The upshot seems to have been that (paragraph 142) the judge said:

"What I am prepared to do is this, Mr Ghadami, and this is the best I can do for you. As I have said, it must be heard before the end of July. What I want to happen is, and you better do this through your solicitors rather than in person because that is the way it ought to be done, is that you must have a word or your solicitors must liaise with the other side, and if a date can be found in July which Mr Straker can do or Mr Fraser-Urquhart -- because it is not fair to them not to have counsel whom they instructed a long time ago -- and put it off to later in July which will give ample time for you to find someone else, and I can assure you -- I know Mr Horton and I can assure you that there are others who will be just as good and who will be able to act on your behalf. But you need to sort out a date. Check again with Mr Horton because things do change. If Mr Horton is engaged or instructed in, say, a planning inquiry in July, it may have disappeared, it may have gone off and you may find that he does have a date. But I am prepared, if a mutually convenient date for two days can be found some time in July, to adjourn it to then and to give you the extra week to put in your material."

13. On that basis the matter seemed (paragraph 162) to have been adjourned with liberty to mention it to him if there was stalemate and no agreement. As I read the note of the order, that hearing seems to have concluded at about 11.21 am. at 12.05 pm Mr Fraser-Urquhart was back before the judge informing him that:

"I have been able to contact Chambers and taken instructions on the availability of counsel. Unfortunately Mr Straker is not available throughout July. There was, I know, some toing and froing to get the dates that have been fixed already, and there is apparently no possibility that date before the end of term can be found when Mr Straker is available."

14. That is where the matter stands. The judge then took the view that he had done his best for Mr Ghadami, but:

"I am frankly not going to prejudice the other side because it is not their fault. It is your solicitor's fault, if anyone's."

In the result, in paragraph 212 he took the decision to leave the case in the list for 23 June 2004.

15. We were told that the Administrative Court could find time for this case on 6 and 7 July or in the week of the 12 July 2004. Mr Straker is not available for either of those dates, but junior counsel, Mr Fraser-Urquhart is available on 15, 16 July.
16. I have been anxious not to interfere with a management decision by an experienced judge, but the following matters are clear to me from the review of the proceedings before Collins J.

1. He was concerned about the tightness of time and was inclined to meet the difficulty facing Mr Ghadami by being put under that pressure.

2. He was not taken fully to the precise consequences of paragraph 5 of Sullivan J's judgment and did not fully appear to appreciate how much the fixture interfered with those directions.

3. He seems to have been content to contemplate moving the fixture for a short period convenient, as he said, either to Mr Straker QC or to Mr Fraser-Urquhart.

4. When the matter came back, because Mr Straker's availability only was drawn to his attention, he did not return to the question of whether or not junior counsel was available.

The judge therefore did not have before him all the facts and matters relevant to a decision as they are placed before us.

17. With a degree of reluctance, I am affirmed in the tentative view I took last week that it is not appropriate to fix cavalierly without regard to the directions the judge gave when granting permission. If the full effect of Sullivan J's judgment and order had been drawn to the attention of the listing officer, I am confident that a date later than 23 June 2004 would have remained available. Sauce for the goose does remain sauce for the gander. Mr Fraser-Urquhart is already instructed and is able to deal with this matter whether or not leading counsel can be retained by the defendants. Whether leading counsel can be retained by Mr Ghadami, I know not, but he has the duty of prosecuting this claim with expedition. If he cannot find representation, that must be the result of bad management on his part which the court cannot ameliorate.
18. In my judgment the judge was wrong not to consider a short adjournment. I would allow the appeal and direct that this matter be fixed for hearing on 15/16 July 2004. I will hear counsel and Mr Ghadami on the kind of directions that now need to be given in order to make that hearing as effective as possible. I would wish to hear submissions as to when a core bundle can be produced by Mr Ghadami. If it cannot be agreed, as it seems unlikely it will be agreed, it may be that the defendants should have the ability to file a supplementary bundle. Both parties will then have to file their skeleton arguments in time for a judge, at least to have some opportunity, to consider it.
19. To that extent, I would allow the appeal.
20. LORD JUSTICE NOURSE: I would agree with the judgment delivered by my Lord and with the future progress of the case as proposed by him.

(Submissions by counsel)

21. LORD JUSTICE WARD: The court always has the power to revisit a judgment given before the order is drawn. Had we appreciated the true availability of counsel, we would have directed that this case be removed from the list this week and be fixed for 6/7 July 2004. We will give these directions:

1. The defendant and the interested party, perhaps unusually but to the advantage of Mr Ghadami if he can see it, are to file their skeleton arguments by close of play on Friday 25 June 2004. They should cross-reference that to the bundle of documents and give references accordingly.

2. A core bundle must be filed by Mr Ghadami by 4 pm on Monday 28 June 2004.

3. Mr Ghadami must serve his skeleton argument by 4 pm on Friday 2 July 2004, which will gave but a few days for the judge to read.

4. The defendants and interested party can have liberty to file a supplementary bundle of documents also by Friday 2 July 2004.

Order: As directed above. No order as to costs below. Costs of the appeal to be the Claimant's, in so far as they have been incurred, to be assessed.