England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
Mr Justice McCombe
[2006] EWHC 896 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/02/2007

Lord Justice Thomas :

1. There was before the court on 16 October 2006 an application by Imaging & Art Studio Ltd (the applicant) for permission to appeal against the judgment of McCombe J refusing a renewed application for permission to apply for judicial review. It was not possible to conclude the hearing that day as one of the material judgments to which this application relates was not available to the court. The entirety of the oral argument was heard on 16 October, though additional points were made in the letter sent on behalf of the applicant on 17 October 2006 enclosing the judgment which was missing.
2. The background to the application can be briefly stated. The applicant is a specialist in reprographic IT and associated services. It was asked by Norman Hudson & Co (Hudson) in 2002 to scan negatives or transparencies for about 80 or so aerial photographs taken of large country houses which Hudson wished to use in a book it was to publish entitled "Historic family homes and gardens from the air". As the judge described the book, it was to be a "coffee table" book. The negatives or transparencies had been taken by a company called Skyscan. The applicant carried out the work, but a dispute arose as to the quality of the work done by it. Hudson refused to pay. The applicant therefore began proceedings in the Oxford County Court. On 1 April 2004, the case was allocated to the fast track and various directions made. The directions included an order for the exchange of experts' reports and an order for the access to the negatives. That was necessary because the negatives were not in the possession of Hudson but owned or controlled by Skyscan.
3. The claimant was dissatisfied with that ruling and appealed to the Circuit Judge. The judge, in a careful judgment given on 28 May 2004, confirmed that the case should remain allocated to the small claims track, dealt with costs and with the order for access. It was contended by the applicant that, as what was at the heart of the dispute was the quality of the negatives supplied to the applicant, it was wrong in principle for the court to have ordered access to the negatives only on terms that the reasonable costs of Skyscan should be paid. The judge upheld the order of the District Judge and ordered that access should only be on terms that the applicant paid the reasonable costs.
4. The matter then proceeded towards trial. Expert evidence was not exchanged in accordance with the judge's order.
5. At trial the District Judge heard the evidence. He rejected the applicant's case that the negatives supplied to the applicant were different from those which had eventually been used to produce the photographs in the book as published. He concluded that the negatives were the same negatives and that therefore the applicant failed in their claim for unpaid invoices and damages, as Hudson had been entitled to reject the work on the grounds of the quality of the work done.
6. The judge gave a careful judgment setting out those conclusions on 2 December 2004 in a judgment the transcript of which runs to some eight pages.
7. It was, of course, open to the applicant to have brought an appeal against that decision. The applicant did not do so. Instead in March 2005 the applicant issued a claim in the Administrative Court against Oxford County Court asking for the decision of the judge given on 2 December 2004 to be quashed and a declaration that the decision was unlawful.
8. The application was considered on paper by Newman J and on 27 April 2005 he refused permission observing that the claim was not amenable to judicial review and that the applicant had the remedy of appealing to the county court judge in accordance with the rules governing such appeals.
9. On 9 March 2006 the application was renewed before McCombe J. At the hearing before the judge the applicant claimed that Part 52 of the Civil Procedure Rules did not provide the applicant with an appropriate remedy to challenge the decision of the District Judge because it would require them to have recourse to the Circuit Judges who were in that court always hostile to proceedings brought by the applicant. They also contended that the District Judge had failed to comply with the ECHR and in particular Article 6. They complained in particular about the order that had been made in relation to access to the negatives of Skyscan, decisions in relation to experts and the conduct of the hearing by the District Judge.
10. McCombe J concluded that there were no issues that went to the jurisdiction of the County Court and that this was in substance a claim where the claimant was dissatisfied with the way in which the case had been decided by the County Courts; the proper course for a dissatisfied litigant was to exercise the rights of appeal provided for in the Civil Procedure Rules.
11. In the application before me, the applicant was represented by one of the officers of the company, Tina Fung. She had prepared a careful statement of the potential grounds of appeal and took me through those succinctly in an argument replete with reference to authorities.
12. Her essential complaint was that the procedural process and in particular certain decisions made by the judiciary in the Oxford County Court showed a disregard of the rights under Article 6(i) and 6(iii) and that the process of the court was discriminatory.
13. In the course of argument and in the submissions put before the court, a number of instances were put forward as to why the processes of the court were in breach of Articles 6(i) and 6(iii), why the process was discriminatory and why there was no proper remedy under the Civil Procedural Rules. I have considered each of these instances, but it is clear to me that each is ill-founded and that there is no realistic prospect of the applicant successfully showing before this court that its claim for judicial review would succeed. I will take one of the instances, the one of those most heavily relied on in argument, to illustrate the position.
14. The applicant complained that they could not obtain justice in the case because the Procedural Rules had resulted in an order by the court where the applicant had been required to pay for access to the documents held by Skyscan, even though access to the documents was at the heart of the case. As applied in practice, the order made by the District Judge and affirmed by the Circuit Judge on appeal resulted in access to the negatives being charged at a rate many times that applicable in the market, even at the half rate indicated in the judgment.
15. It seems to be unarguable to suggest that a person not party to the litigation, but whose documents are required for the just disposal of that litigation, be required to produce those documents without charging the reasonable expenses for access to those documents. The system therefore which enables a court to order payment to the third party for access to the third party's documents is one that seems to me entirely to accord with the rights under Article 6. Of course in any particular case, there may be an argument as to the reasonableness of the charges that are to be made, but that is entirely a question of fact to be resolved within the Civil Procedural system. The Civil Procedural system provides for an order to be made by a judge and for there to be an appeal. That is what happened in this case. Although I can see the force of the argument that the decision before the first judge and on appeal may be one with which the applicant is dissatisfied, that itself does not give rise to any arguable case for judicial review.
16. Nor can I see any basis whatsoever to suggest that the system operated at the Oxford County Court is discriminatory. If the applicant considered that there was some discrimination against them at that court it would always be open to the applicant to set out the grounds of the concern and ask the more senior judiciary responsible for that court to consider having the appeal heard elsewhere. Again the system provides a remedy under the operation of the Civil Procedural Rules; there is no point of law or issue going to the jurisdiction of the court on which there is any arguable prospect of success.
17. Despite the attractive way in which Miss Tina Fung put the matter before me, I consider that the decision of McCombe J was entirely correct and there is no merit in this application. It is accordingly dismissed.