England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[Appeal No: OA/27343/2010]

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd May 2013

Lord Justice Davis:

1. The issue raised on this application is as to the meaning and effect of Rule 52.15(1A) of the Civil Procedure Rules, which came into force on 1 October 2012. Put compendiously, the question is this: does that sub-rule have the effect of precluding a renewed application for permission to appeal at an oral hearing by a Court of Appeal judge after another judge of the Court of Appeal has refused, on the papers, permission to appeal from a refusal by the High Court to grant permission to apply for judicial review of a decision of the Upper Tribunal? A second question is whether, in any event, such sub-rule has any application where the claim for judicial review in question was issued before 1 October 2012.
2. The background facts to the matter can be very shortly stated, given the nature of the issue before the court. The applicant is a citizen of India, born on 12 August 1992. On 27 July 2010 he applied for entry clearance to settle in the United Kingdom as a dependent of his mother, who had, it would seem, leave to remain in the United Kingdom from June 2008, when she arrived, to a date in 2012. On 29 September 2010 the Entry Clearance Officer refused his application. He appealed, and his appeal came on for oral hearing before the First-tier Tribunal. He was represented at that hearing by counsel. By a fully reasoned and detailed determination promulgated on 28 June 2011, the appeal was dismissed by the First-tier Tribunal. The application had been treated as if made under paragraph 301 of the Immigration Rules. It was found on the evidence that the mother did not have sole responsibility for the applicant's upbringing for the purposes of the Immigration Rules. An alternative ground based on Article 8 of the Convention was also rejected. The appeal was, in the result, dismissed on all grounds.
3. The applicant sought permission to appeal to the Upper Tribunal. Permission was refused on the papers by Upper Tribunal Judge Freeman, sitting as a judge of the First-tier Tribunal, on 1 September 2011. A further application to the Upper Tribunal for permission to appeal to the Upper Tribunal was dismissed on the papers by a fully reasoned decision of Upper Tribunal Judge Perkins on 23 December 2011. By this stage the grounds being advanced were in some respects new. Amongst other things, the rather remarkable proposition was being advanced to the effect that a person who was alive could be deemed to be dead for the purposes of the relevant Immigration Rules. At all events, the conclusion of the Upper Tribunal Judge was that none of the grounds advanced was reasonably arguable.
4. The applicant then applied to challenge the refusal to grant permission to appeal to the Upper Tribunal by issuing judicial review proceedings on 16 February 2012. The application for permission to apply for judicial review was considered on the papers by Owen J. On 6 June 2012 he refused the application. He recorded that the case was considered to be totally without merit. The applicant then, at some stage prior to 1 October 2012, renewed his application to an oral hearing, and that came on before Hickinbottom J on 3 October 2012. The applicant was represented at that hearing by Mr Zane Malik, who also appears on his behalf today. Hickinbottom J again refused the application, holding that the claim was unarguable on all grounds.
5. Nothing daunted, the applicant then set about appealing to the Court of Appeal. His application for permission to appeal came before Sir Richard Buxton on the papers. While Sir Richard Buxton did not certify as totally without merit, he refused to grant permission, his written decision being dated 26 February 2013 and being expressed in trenchant terms. He said that the application failed in any event on all grounds and also failed to meet the second appeals test.
6. So the position thus far was that the applicant had failed at the hearing before the First-tier Tribunal. His application for permission to appeal to the Upper Tribunal was refused on two separate occasions by two very experienced tribunal judges. His consequential application for leave to apply for judicial review had been roundly rejected by two High Court judges, and then by a judge of the Court of Appeal. Now he is seeking an oral hearing before another Court of Appeal judge or judges, which would be a seventh judicial appraisal. In the event, on 27 March 2013, a Deputy Master of the Civil Appeals Office notified the applicant of her decision, made on the papers, that there was no right to an oral hearing before a Court of Appeal judge by reason of the application of Rule 52.15(1A). It is a challenge to that decision of the Deputy Master which is now before us.
7. It is appropriate at this stage to refer to the provisions of the relevant rule. So far as Rule 52.15 is concerned, that is entitled "Judicial review appeals". Rule 52.15(1A) itself was introduced by rule 8 of the Civil Procedure (Amendment No. 2) Rules 2012, SI 2012/2208. That statutory instrument was laid before Parliament on 29 August 2012 and, by rule 1, came into force on 1 October 2012. Rule 8 made various alterations to Rule 52.3 of the Civil Procedure Rules, including a revised Rule 52.3(4A). Rule 8(c) of the statutory instrument introduced a new Rule 52.15(1A) of the Civil Procedure Rules. It did so in these terms:

"(1A) Where permission to apply for judicial review of a decision of the Upper Tribunal has been refused by the High Court –

(a) the applicant may apply to the Court of Appeal for permission to appeal;

(b) the application will be determined on paper without an oral hearing."

It may also be noted that the Civil Procedure (Amendment No. 20) Rules 2012 also, by rule 9(c), introduced a new Rule 54.7A to the Civil Procedure Rules relating to judicial review in the High Court of decisions of Upper Tribunals. Amongst other things, Rule 54.7A provides as follows:

"54.7A

(1) This rule applies where an application is made, following refusal by the Upper Tribunal of permission to appeal against a decision of the First Tier Tribunal, for judicial review–

(a) of the decision of the Upper Tribunal refusing permission to appeal; or

(b) which relates to the decision of the First Tier Tribunal which was the subject of the application for permission to appeal.

[...]

(7) The court will give permission to proceed only if it considers –

(a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and

(b) that either –

(i) the claim raises an important point of principle or practice; or

(ii) there is some other compelling reason to hear it.

(8) If the application for permission is refused on paper without an oral hearing, rule 54.12(3) (request for reconsideration at a hearing) does not apply."

The 2012 Amendment Rules, I would add, made a number of other changes to the Civil Procedure Rules, including with regard to rules relating to applications to commit for contempt of court.

8. The background prompting these particular revisions to the Civil Procedure Rules is not hard to find. It lies in the decision of the Supreme Court in the case of R(Cart) v The Upper Tribunal [2012] 1 AC 663, [2011] UKSC 28. That, putting it shortly, decided that judicial review was an available remedy in respect of otherwise unappealable decisions of the Upper Tribunal. But the Supreme Court, in so deciding, was naturally concerned at the potential implications of this: and (putting it broadly for present purposes) it in effect decided that, on any such application for permission to bring a judicial review claim, in such a situation the court should adopt the criteria upon which applications for permission to make a second-stage appeal were determined. The members of the Supreme Court were also at pains to comment on what might be thought to be appropriate procedures in this regard. Thus, for example, Lord Phillips said this in paragraph 93 of his judgment in Cart:

"What would, however, be totally disproportionate, is that this judicial supervision should extend to the four stage system of paper and oral applications first to the Administrative Court and then, by way of appeal, to the Court of Appeal, to which the ordinary judicial review procedure is subject. What are first required are readily identifiable criteria for the grant of permission to seek judicial review. That these exist should be capable of demonstration by paper applications, and my firm view is that applications for judicial review should be restricted to a single paper application, unless the court otherwise orders. This is, however, a matter for the Civil Procedure Rule Committee."

Lady Hale at paragraph 58, Lord Clarke at paragraph 106 and Lord Dyson at paragraph 132 made comments to similar effect as to the appropriateness of such matters being disposed of on the papers. The new Rule 52.15(1A), and indeed the new Rule 54(7A), plainly were drafted against that background.

9. There is no real doubt that those drafting the notes to Rule 52.15 understood that permission applications to the Court of Appeal in this context would be dealt with solely by one application on the papers. The accompanying note in the 2013 edition of the White Book states as follows:

"...Rule 52.15 modifies the general provisions about permission to appeal (r. 52.3) in relation to judicial review appeals. The particular purpose of r.(1A), however, is to ensure that applications for permission to appeal to the Court of Appeal, following adverse results in both the Upper Tribunal and the Administrative Court, would be dealt with on paper, rather than by way of an oral hearing, thereby addressing the consequences of the decision of the Supreme Court in R(Cart) v Upper Tribunal [2011] UKSC 28. See also r. 54.7A."

10. However, that opinion, whether or not stated by those actually drafting the new Rule, cannot of itself determine what is indeed the true meaning and effect of Rule 52.15(1A). It is also perhaps as well to bear in mind the comments of Lord Halsbury in the case of Dexter v Hilder [1902] AC 474 at page 477:

"...in construing a statute I believe the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed."

11. Turning to the submissions, Mr Malik on behalf of the applicant emphasised the importance that oral argument customarily has played under the law and procedures of England and Wales in determining cases. He cited to us passages from the judgments of Laws LJ and Keene LJ in Sengupta v GMC [2002] EWCA Civ 1104 in support of his submission on this. He said that such points should be borne in mind in assessing the true meaning and effect of Rule 52.15(1A). It also can be stated in this regard that the observations of the judges in the Supreme Court in Cart had expressly left the matter to the Civil Procedure Rules. Mr Malik's overall submission is that, given the customary emphasis on oral hearings under English litigation procedures, clear wording is needed if an oral hearing is to be denied.
12. Mr Malik then went on to draw attention to and rely on the provisions of Rule 52.3 of the Civil Procedure Rules, relating to permission to appeal. In particular, he drew attention to Rule 52.3(4), which provides:

"(4) Subject to paragraph (4A), 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."

Paragraph (4A), of course, relates to applications certified as totally without merit: and in the present case Sir Richard Buxton had not so certified. Going on from that, Mr Malik submits that the language of Rule 52.15(1A) has not provided, in appropriately clear terms, for the exclusion of the right to renew bestowed, in general terms, by Rule 52.3(4). He sought to reinforce his argument by emphasising the provisions of the new Rule 54.7A, also introduced by the self-same 2012 Amendment Rules. This by paragraph 8 had explicitly ruled out a renewed oral hearing after a refusal on the papers. No such explicit provision appears in Rule 52.15, he submits.

13. In my view, however, this is not a sustainable argument, and for a number of related reasons. First, if it is right, one might well ask what the new sub-rule was designed to achieve. If the right to renew to an oral hearing is, in any event, retained by reference to Rule 52.3(4), then Rule 52.15(1A) effectively is, as Ms Busch submitted in her written submissions, otiose. Secondly, Rule 52.3 relates to applications for permission to appeal from lower courts in general terms. But Rule 52.15 relates specifically to judicial review appeals, of which this case is one. Further, Rule 52.15(1A) relates specifically to cases where permission to apply for judicial review of a decision of the Upper Tribunal has been refused by the High Court; again, a class of case of which this is one. The specific rule should, to my mind, take precedence over the general rule. Third, I can accept that the word "determined" may have various shades of meaning, depending on the context. But in my view, and this really is the defining point, naturally read in its present context and when coupled with the words "without an oral hearing", these words mean what they say and connote finality in the process. The matter is to be determined without an oral hearing. That precludes there being a subsequent oral hearing on the point. It is, of course, true that no such specific provision as is contained in Rule 54(7A)(B) is included in this rule, as Mr Malik stressed. But Rule 54(7A) is dealing with a rather different situation (albeit, I accept, in the same context of judicial review applications of Upper Tribunal decisions) relating to High Court applications; and total consistency in the drafting approach, even if desirable, was not mandated.
14. Mr Malik did also refer to and rely on the provisions of Rule 52.16 of the Civil Procedure Rules and in particular Rule 52.16(6), which provides:

"(6) At the request of a party, a hearing will be held to reconsider a decision of –

(a) a single judge; or

(b) a court officer,

made without a hearing."

Mr Malik said that that sub-rule can be linked to the provisions of Rule 52.3(4), although in itself Rule 52.16 is more widely directed at powers of the Court of Appeal and in particular decisions of court officers. But, in any event, in my view reliance on this particular rule can have no greater force than reliance on the other rules that Mr Malik sought to rely on (in particular rule 52.3(4)) and again the general must give way to the specific. So this particular point cannot prevail either.

15. Mr Malik then, as his alternative ground, submitted that Rule 52.15(1A) does not apply where the judicial review claim, as here, was issued prior to 1 October 2012. He submitted that, as the law stood at that time, the applicant had an accrued or vested right to the effect that he would be entitled to renew at an oral hearing any application to appeal to the Court of Appeal, and the subsequent imposition of a rule change should not be read so as to deprive the applicant of such a right.
16. The general rule is that statutes are not to be read, in the absence of explicit wording, so as to take away or impair an existing substantive right: the presumption against retrospectivity. But at the same time, the general rule also is that no such presumption applies with regard to procedural matters: one rationale for that being that a change in procedural provisions is expected to be for the general benefit of litigants. There is a very valuable discussion of the whole topic in the judgment of Lord Rodger in the case of Wilson v First County Trust Limited (No. 2) [2004] 1 AC 816, [2003] UKHR 40. The normal presumption, at all events, is that procedural provisions take effect from the date that they come into effect and apply to current as well as to future proceedings. In effect, you conduct the proceedings according to the rules of conduct relating to the action for the time being in force.
17. In the present case, the amended rule undoubtedly was a procedural provision. It came into effect on 1 October 2012 and there is nothing to suggest that it should not apply to proceedings then current. Certainly, no transitional provisions are included to the effect as argued for by Mr Malik. On the contrary, the only transitional provision included in rule 20 of the statutory instrument relates to the rule changes for committal applications, which are in terms applied to all applications for committal made on or after 1 October 2012. It is striking that no such transitional provision applying to rule 8 of the statutory instrument is included. That simply tends to reinforce the point that it was to be presumed that that rule change would apply to current proceedings as well as to future proceedings.
18. I can see no injustice resulting from such an interpretation. In truth, the applicant had no vested right at all of any relevant kind. He had perhaps an inchoate expectation that his case would be decided in accordance with the rules as they then stood. But, even then, the right to apply to the court for judicial review had only been established by the recent decision of the Supreme Court in Cart; and the Supreme Court in Cart had of course also indicated suggestions as to what procedure might appropriately be applied. At all events, no injustice of any kind can result in consequence of Rule 52.15(1A), on its true meaning and effect, applying to current proceedings.
19. Mr Malik did seek to rely on a decision of Collins J in the case of Sharma & Ors v Upper Tribunal [2012] EWHC 3930 (Admin). That was a decision by reference to the provisions of Rule 54.7A. It was an extempore decision: made, moreover, where the defendant was not represented. In paragraph 6 of his extempore judgment, Collins J said this:

"So far as the abolition of the right of oral renewal is concerned, that will affect all claims lodged after 1 October. It will not affect those which were lodged before 1 October and which have had refusals on the papers because, it could be said, that in those cases it would be unjust to refuse an oral renewal since it may be arguable there that there was an accrued right to that extra protection. That, I imagine, will affect very few cases indeed. That is I think all that I need say on this issue."

It may be noted that not only was Collins J speaking obiter, he was addressing a point arising by reference to Rule 54.7A and moreover was addressing the point without the benefit of any sustained argument. Moreover, the wording of Rule 54.7A, and in particular in its opening wording of sub-paragraph 1, is very different from the wording of Rule 52.15(1A). It is not, I think, appropriate, so far as I am concerned, to express any view on the correctness or otherwise of Collins J's general observations in paragraph 6. It is sufficient to say that he was dealing with a position potentially arising under Rule 54.7A and his observations do not bear on the true meaning and effect of Rule 52.15(1A).

20. Finally, I would note that Sir Richard Buxton's decision was communicated to the applicant's advisors on a standard refusal of permission form, indicating that there was a right to renew to an oral hearing. That was speedily corrected by the decision of the Deputy Master of the Civil Appeals Office mentioned above. No irreversible prejudice has arisen, or could be said to have arisen, from the initial use of the wrong form in conveying Sir Richard Buxton's decision and such a slip could not operate to confer on this court a jurisdiction which under the Rules this court does not have. Nor, in fairness, has Mr Malik sought so to argue.
21. In conclusion, I would refuse this application. This court has no further jurisdiction to entertain the application for permission to appeal and the decision of Sir Richard Buxton is final.

Lord Justice Ryder:

22. I agree.

Lady Justice Hallett:

23. I, too, agree.

Order: Application refused.