England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London WC2
		19th October 2000

JUDGMENT
1. LORD JUSTICE BUXTON: In these proceedings for judicial review the applicant, Dr Pelling, principally seeks to have declared ultra vires certain rules in the Civil Procedure Rules and certain parts of the Practice Directions issued under those rules. Dr Pelling's attention was drawn to the matters of which he complains by certain practices at the Bow County Court, but it is important to note that the relief that he seeks in these proceedings is directed at the generality of the rules and practice directions underlying those practices and not, save in one respect, which I shall come at the end of this judgment, at the practices at that court themselves.
2. There are a number of preliminary matters that I must deal with before I come to the substance of the case:

(1) The case was estimated to last for one day. That was an estimate that even if not made by Dr Pelling, he concurred in to the extent of recording it at the beginning of his skeleton argument, and the case was accordingly listed and other cases today equally listed on that assumption. The case was listed to come on at 12 noon yesterday and was called on at that hour. Dr Pelling had not then arrived in court, owing to transport difficulties which he properly explained to us later, but was able to commence his submissions at 12.30. At 4.15 yesterday we told him that the court would sit today at 10 o'clock but that he must conclude his oral submissions by 11.30; that is to say, allowing him over four hours of court time to address us. Dr Pelling indicated that that would cause him difficulty. However, we bore in mind not only the time allocation that we had already indicated, but also that we had received and carefully read extensive written submissions from Dr Pelling, including a 20-page submission on the implications of the European Convention on Human Rights, a matter that he indicated would need to be dealt with extensively. We were also conscious, as we always are, of our duty to manage the time of the court in the interests of all litigants, including those litigants who, on the basis of the original time estimate, are now in court waiting for their cases to be heard. We were satisfied that we could do justice to Dr Pelling's case and to his arguments within the time limited to oral argument as we have described. In the event, Dr Pelling was able to conclude his address to us shortly before 11.30 and was good enough to say that that time had been sufficient to him; though I would not want that to be read as any more than a courteous observation to the court, rather than any waiver or withdrawal on his part of the submissions that he had made on the previous day.

(2) Dr Pelling submitted at the outset of the hearing that he would be handicapped in the presentation of his case by being required to sit in that part of the seats in the court which are usually allocated to litigants in person. He drew our attention to a substantial written submission that he had previously made indicating the particular difficulty that he would encounter. He asked to be permitted to move elsewhere. We agreed to that adjustment of Dr Pelling's position in the court in the light of the particular difficulties that he had outlined. We made it clear to him, and repeat, that we were establishing no general approach on the part of the court. Our decision is limited to this constitution hearing this case.

(3) In his original Form 86A Dr Pelling had sought to challenge an extensive part of the Civil Procedure Rules and the Practice Directions. In order to explain this point, and for reference purposes later on in this judgment, it is necessary to set out the relief that he sought, explaining as we do so what the content is of the provisions to which he takes objection. The relief sought was:

"1. A declaration that Civil Procedure Rules 1998 Rules 39.2(3)(c) and 39.2(3)(d) and 39.2(4) are ultra vires."

3. Rule 39.2(3) reads as follows:

"A hearing, or any part of it, may be in private if...

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or patient."

4. The second relief sought was:

"2. Declaration that CPR 1998 Practice Direction 39PD "Miscellaneous Provisions Relating to Hearings" paragraphs 1.5, 1.6, & 1.7 are ultra vires."

5. Those paragraphs are as follows:

"1.5. The hearings set out below shall in the first instance be listed by the court as hearings in private under rule 39.2(3)(c), namely...",

6. and a number of those are set out including:

"(2) a claim by a landlord against one or more tenants or former tenants for the repossession of a dwelling house based on the non-payment of rent;

(3) an application to suspend a warrant of execution or a warrant of possession or to stay execution where the court is being invited to consider the ability of a party to make payments to another party."

7. Eleven types of action are listed as being governed by Practice Direction 1.5, including that which I have just read out. Paragraph 1.6:

"Rule 39.2(3)(d) states that a hearing may be in private where it involves the interests of a child or patient. This includes the approval of a compromise or settlement on behalf of a child or patient or an application for a payment of money out of court to such a person."

8. 1.7:

"Attention is drawn to paragraph 5.1 of the practice direction which supplements Part 27 (relating to the hearing of claims in the small claims track), which provides that the judge may decide to hold a small claim hearing in private if the parties agree or if a ground mentioned in rule 39.2(3) applies. A hearing of a small claim in premises other than the court will not be a hearing in public."

9. The third relief sought is in the following terms:

"Declaration that CPR 1998 Practice Direction 27PD "Small Claims Track" paragraph 4.1(2) is ultra vires."

10. Having said in paragraph 4.1(1) that the general rule is that a small claim hearing will be in public, paragraph 4.1(2) continues:

"The judge may decide to hold it in private if -

(a) the parties agree, or;

(b) a ground mentioned in rule 39.2(3) applies."

11. The fourth ground of relief claimed is:

"Mandemus requiring Bow County Court to hold all civil trials in open court without concealment identities of parties/witnesses, unless authorised otherwise at Common Law or by enactment, and without impeding the access of the public to the hearings."

12. Dr Pelling was refused permission to pursue this application by the single judge originally but was granted permission by the Court of Appeal on a renewed application. He was however only granted that permission in respect of a limited number of matters, which, to quote from the order of the court, were as follows:

"(i) the question of whether statute gave power to the rule makers to provide that hearings may be in private in the circumstances described in Part 39.2(3)(c)

(ii) the question of whether the rules if they were ultra vires gave power to issue the particular practice direction relating to possession proceedings commencing in private 39PD 1.5(2)

(iii) what the practice should be as regards possession hearings should also be established so that there is not a different practice in one court rather than another

(iv) whether small claims being tried in the chambers of a district judge with access only through a locked door with the assistance of a member of the Court staff is a hearing in public."

13. Dr Pelling applied to us to extend that permission so that he can argue all of his grounds. In his skeleton argument, Mr Philip Sales, on behalf of the county court, which is the titular respondent to this application, said that we were bound by the decision of the Court of Appeal in respect of the extent of these proceedings. As at present advised, I am not certain that that contention was correct. When it granted this permission, the Court of Appeal was acting under the provisions of order 59 rule 14(3). It was not hearing an appeal from the original judge, but was arguably acting as a second original tribunal. In making that point, I have not overlooked the judgment of Lord Hoffman in the case of Kemper [1998] 3 WLR page 641 G, nor the adoption of Lord Hoffman's remarks by the Court of Appeal in the case of Adan. It seems to us, however, at least arguable that despite the process under order 59 rule 14(3) being there described as an appeal, the substance of the decision stands on the same level with regard to this court as would the decision of any permission granting judge.
14. However, we concluded that even if we did have vires to consider, and if need be grant, this extension, we should not do so. The Court of Appeal's basis, as stated in its judgment, for limiting Dr Pelling's case was that he should limit his application to "the circumstances with which he was concerned." In so saying, the Court of Appeal may or may not have had in mind the formal locus point, and Dr Pelling argued before us that under the present rules of standing, at least so far as what I would call domestic applications are concerned, he would have locus in respect of all the matters that he had listed in his application. We, however, base our ruling not on technical consideration of locus, but on the inappropriateness in general terms of extending these proceedings to all of the matters of which Dr Pelling complains. The evidence and the arguments that he adduces are all directed at the question of, in particular, whether the rules of which he complains can be shown to be ultra vires in the context of possession proceedings. It would take the case far beyond that factual matrix in an inconvenient and inappropriate way to include within it what Dr Pelling wishes to be a far more wide-ranging attack on other aspects of the rules, in particular the rules as they apply in domestic proceedings. We therefore did not grant Dr Pelling leave to argue any matter other than that in respect of which he had been given permission by the Court of Appeal, and it is right that I should put on record that he punctiliously observed that ruling when he was addressing us.

(4) The respondent sought to adduce a witness statement of a District judge, DJ Gypps, who in fact sits at the Southend-on-Sea County Court, not at Bow County Court. He wished to give evidence about two matters. Firstly, he was a member of the Civil Procedure Rule Committee and on various working parties assisting the Vice-Chancellor in his making of practice directions, and he gave some evidence in paragraphs 2 to 8 of his witness statement of the mode whereby the rules had been made. Then from paragraph 9 onwards of his witness statement he gave an account of the practice in his court, and as he believed in other courts, with regard to the making of possession orders, that being the subject matter within which Dr Pelling's complaints arose, and made observations about the circumstances of litigants in such actions and the reason why it was seen as desirable that there should be at least a facility for hearing such actions in private. We had some considerable doubt as to whether the first part of that evidence, that is to say about the rule-making process, was indeed relevant, or indeed admissible, and on the matter being raised with him, Mr Sales indicated that he would not wish to rely on that part of the evidence. He did however submit in his skeleton argument that the matter from paragraph 9 onwards described the experience of a District Judge in dealing with possession actions and the effect of publicity on applicants, and he submitted that it was a useful element of background information of the sort that is often seen in judicial review cases. We, of course, have read the whole of the statement. We did not think that in the event the evidence of DJ Gypps, even that part that we were minded provisionally to admit, could be in any way decisive with any of the issues of the case, and I do not refer to it further in this judgment. We were however minded to agree with Mr Sales that it could serve as useful background information in the manner that I have indicated.

15. As against that, Dr Pelling contended on two grounds:

(i) he said that the evidence was not in the form now required by the Civil Procedure Rules, and, in particular, contrary to those rules, assumed that the evidence would prima facie be given other than orally. In my judgment that objection is misconceived. It is, in my judgement, quite clear from the general form and provisions of the Civil Procedure Rules as they at present stand and the retention of order 53 of the rules of the Supreme Court that are not intended to apply in the specialist jurisdiction of judicial review.

(ii) Dr Pelling said that if he was wrong on the first point, he would wish to apply to cross-examine DJ Gypps even though it would be emphasised that his principal objection, as I have already indicated, was that the evidence should not be in written form at all. It is, as is well-known, unusual for there to be cross-examination in a judicial review case. That was made clear, for instance, in the judgment of Laws J, as he then was, in the Arts Council Case [1998] COD 175. In particular, we considered that given the limited range of DJ Gypps' evidence, it was not possible to say that the interests of justice required him to be cross-examined. We have to say that we were fortified in that conclusion by hearing a detailed account from Dr Pelling of the matters that he intended to ventilate in such cross-examination: which, it became clear to us, would have gone far beyond examination of factual issues and would have rapidly descended into argument. We therefore did not order DJ Gypps to attend for cross-examination.

16. I turn to the substance of the matters as set out in the order of the Court of Appeal, that I have already read, and in the order in which the Court of Appeal dealt with them.
17. The Court of Appeal recognised that grounds 1 to 3 largely, but not entirely, raise similar issues, and I shall mainly concentrate in ventilating those issues upon the first of those grounds, that is to say the vires of rule 39.2(3)(c) of the Civil Procedure Rules, which we remind ourselves reads:

"A hearing, or any part of it, may be in private if ...

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality."

18. Dr Pelling argued that it was a principle of the common law of the highest importance and standing that courts should sit in public. He took us in particular to the well-known case of Scott v Scott [1913] AC 417 to establish that point. He further contended that what is now known, or has recently become known, as the principle of legality means that such a rule cannot be abrogated or undermined by legislation, and a fortiori not by delegated legislation, except in very express terms.
19. In support of that argument Dr Pelling might have cited what was said by Lord Hoffman in the case of R v SS for the Home Department ex parte Simms [1999] 3 WLR 341 E, which I will cite:

"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament apply principles of constitutionality little difficult from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."

20. However, in applying that principle, it is necessary very carefully to investigate what the common law principle is that is said to benefit from the application of the principle of legality. It is quite clear from scrutiny of Scott v Scott itself that the principle of publicity set out in that case is not an absolute one. That matter is particularly addressed in the leading speech of Viscount Haldane LC, page 437 and following, from which it is only necessary specifically to cite a short passage:

"While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done."

21. And then further on:

"As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield."

22. The rule in Scott is therefore not absolute. It is in that respect not at all like the rule of legal professional privilege, in particular as discussed in the context of the principle of legality by Toulson J in the case of General Mediterranean Holdings SA v Patel [1999] 3 All ER 673. Nor is our present case subject to the objection that prevailed in the Simms case, that the rule in issue imposed an absolute ban, or an absolute barrier, in respect of the perceived constitutional right, in that case the right to freedom of expression. It is plain from reading it that Civil Procedure Rule 39.2(3) is facultative. It permits in certain limited circumstances the judge to sit in private, always to be assumed subject to that being in the interests of justice; and that is subject to the general rule set out in rule 39.2(1). The general rule is that the hearing is to be in public. It follows from that that this part of the Civil Procedure Rules does not in any event breach the principle of legality because it does not in itself legislate inconsistently with the content of the rule in Scott v Scott, for the reasons that I have indicated.
23. That is the end therefore of this point, but in any event I would go on and say that it is clear from reading them, and clear from any informed knowledge of their origin, that it was the intention of Parliament in the Civil Procedure Act of 1997, and the intention of those who made the Civil Procedure Rules carrying out Parliament's intention as set out in that Act, to make a new start in those areas of practice to which the ambit of the rule applies. It may well be a necessary inference, to use the formulation adopted by Lord Hoffman in Simms, from that circumstance that the general rules made in the Civil Procedure Rules, were it in fact the case that they in turn were inconsistent with the Scott principle, had indeed properly reversed, replaced, or at least put another aspect on that principle. I do not need finally to conclude that point for the reasons that I have already indicated, but in considering the vires and status of the Civil Procedure Rules generally, it seems to me that the potency and the novelty that Parliament clearly intended to attach to the Civil Procedure Rules cannot be overlooked.
24. I have not forgotten that Dr Pelling alleged that, whatever the rules might say, the judges at the Bow County Court were not applying them in the spirit of Scott and not giving consideration to whether cases prima facie falling within the rules indeed justified private hearings. We have not investigated that aspect of the case further because it is irrelevant for the case as put. The application, I emphasise again, seeks to have the rules themselves declared ultra vires. It does not seek specific relief in respect of specific decisions or a series of decisions within the ambit of those rules.
25. That was Dr Pelling's objection so far as the common law is concerned. I turn to the application to this case of the European Convention on Human Rights, now part of the domestic law of this country by the operation of the Human Rights Act of 1998, and having well in mind that the Court of Appeal when granting permission in this case ordered that it should not come on until after 2nd October so that it could be considered in the light of the Human Rights Act. Dr Pelling in fact -- I was going to say "complained", but that is too strong a word -- expressed regret about that decision of the Court of Appeal. That was because he had two strikingly contrasting submissions to make with regard to the European Convention. He said first of all, and as I understood it as his primary submission, that he would have preferred a hearing to take place before 2nd October, because he suspected that the intent of the Civil Procedure Rules was to introduce into English law what Dr Pelling thought was the more lax regime approved by the European Convention in place of the common law rule in Scott. In that connection he took particular objection to the recently introduced amendment to Civil Procedure Rules Practice Direction 39, which we have already looked at in some respects, paragraph 1.4 of which says that:

"The judge in deciding whether to hold a hearing in public or in private must make the decision having regard to representations that have been made to him",

26. and then the new paragraph 1.4A continues:

"The judge should also have regard to article 6.1 of the European Convention on Human Rights. This requires that in general court hearings are to be held in public but the press and public may be excluded in the circumstances specified in that article. Article 6.1 will usually be relevant, for example, where a party applies for a hearing which would normally be held in public to be held in private as well as where a hearing would normally be held in private. The judge may need to consider whether the case is within any of the exceptions permitted by article 6.1."

27. That objection on Dr Pelling's part is in my judgment misconceived. That part of the Practice Direction is fully justified and indeed proper and necessary by reason of the fact that Parliament, not the authors of the Civil Procedure Rules, has decided and has set out in section 6.1 of the Human Rights Act, that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, and that in determining that matter account must be taken of the Convention and of its jurisprudence. The courts and the judges are public authorities in this connection, and therefore they are obliged by statute to take account of the European Convention on Human Rights: however much, as I understand it, Dr Pelling may deplore that parliamentary decision.
28. However, Dr Pelling (recognising the arguably paradoxical nature of his next submission) continued that, now that the Human Rights Act was part of our law, he could indeed rely upon it. He took us first to article 6, dealing with right to a fair trial. The first sentence reads:

"In the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

29. Dr Pelling recognised that he had not suffered any detriment by reason whatever it is that the Civil Procedure Rules do, but he drew our attention to the more extensive view of that article that has been taken by the European Court of Human Rights, and in particular a passage in the case of Axen v Germany [1984] 6 EHRR 195. The court said at paragraph 25 of its judgment:

"The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention."

30. Dr Pelling said that he could assert and rely on that understanding of article 6 articulated by the European Court of Human Rights. For my part, I have some doubt as to whether a citizen in the position of Dr Pelling, and on the facts as he indicates them, can in fact institute proceedings in relation to a breach of article 6, because, if this is a breach at all, it is a breach of a duty of submitting the authorities to public scrutiny, a scrutiny which is as much or as little a concern of one citizen rather than another. I would wish to reserve any decision on the question of whether on the facts as demonstrated in this case Dr Pelling is in fact a victim in respect of the particular breach of article 6 that he asserts, within the terms set out in section 7 of the Human Rights Act. Such scrutiny of the Strasbourg cases as I have been able to undertake leaves open the question of whether an actio popularis, as such effectively Dr Pelling seeks to bring, is admissible under section 7. However, Mr Sales, no doubt sensibly, and conspicuously fairly, did not take any point on Dr Pelling's locus to argue the convention point, and we were content to proceed on the basis that he did have locus under section 7. I simply record that this case should not be read as making any decision on that point.
31. That said, there are, however, three difficulties facing Dr Pelling's contention:

(i) first of all, the objection under article 6 falls in the face of the terms and nature of the rule that is said to be in breach of that article. As I have already pointed out, it does not bar the citizen from the courts in all circumstances. It gives weight in terms to the requirements of article 6 itself as indeed paragraph 39.4A of the practice direction emphasises.

(ii) article 6 itself does not create absolute rights. That is demonstrated by a number of cases which we were shown, all of which, in my judgment, contain the same theme. An example is the case of Hakansson and Sturesson v Sweden [1990] 13 EHHR 1. That was concerned with waiver on the part of the litigants of a right to publicity, the terms in which that was admissible, and the effect it had on the article 6 right. The court said at paragraph 66 of its judgment:

"The public character of court hearings constitutes a fundamental principle enshrined in paragraph 1 of article 6. Admittedly neither the letter nor the spirit of this provision prevents a person from waiving of his own free will either expressly or tacitly an entitlement to have his case heard in public. However a waiver must be made in an unequivocal manner and must not rub counter to any important public interest."

32. Dr Pelling contended that a waiver would in any event, at least in England, run counter to an important public interest, that is to say the important public interest expressed in Scott v Scott of litigation being conducted in public. It is quite clear that that argument is circular. The type of important public interest that the court in Strasbourg had in mind in paragraph 66 could not itself have been the right to publicity, because it was a right or interest that was seen to qualify that very right, and that is made clear in the next paragraph of the court's judgment dealing with the case itself. Having dealt with the question of waiver, it said:

"Furthermore, it does not appear that the litigation involved any questions of public interest which could have made a public hearing necessary."

33. If Dr Pelling were right and the general public interest of persons not involved in the case of knowing what was happening is paramount, then I agree with the contention put forward by Mr Sales in his skeleton argument, that it really is not easy, indeed it is impossible, to see how the court could have recognised the possibility of the parties waiving the right.

(iii) the European Convention recognises a discretionary judgment in the national court in the way in which it applies the precepts of article 6 within the national legal order. That perception is sometimes confused with the doctrine of margin of appreciation, which is of course a doctrine available to the Strasbourg court and not available in those terms to the national authority. At the same time, however, the fact that the doctrine of margin of appreciation exists in the jurisprudence of the Strasbourg court underlines the degree to which the rules themselves contain a latitude for judgment on the part of the national authorities. That relationship between the doctrine of margin of appreciation and the binding terms of the Convention was addressed by Lord Hope of Craighead in Regina v Director of Public Prosecutions ex parte Kebilene [1999] 3 WLR 994 C, when he said:

"It will be easier for a [discretionary area of judgment] to be recognised where the Convention itself requires a balance to be struck..."

34. One needs, as I have already indicated, to look at that particular last point with some caution in any given case, but looking at the terms of article 6 and looking at the terms of the rule that is said to breach it, I find no prospect whatsoever of the rule of which we are concerned being found to be, as a rule, a breach of article 6.
35. Dr Pelling also adduced arguments under article 10, saying that to bar or inhibit individuals from attendance at court basically interfered with their freedom to receive information under article 10. For my part, I regard it as artificial to characterise the act of a person attending a court hearing as an act of receiving information, but I let that pass. What is more to the point is the limited nature of the freedom to receive information that has been recognised by the Strasbourg court. In a number of cases, of which simply by way of example one may refer to the case of Guerra and others v Italy [1998] 26 EHHR 357, the court has set out the limits that it recognises. In the Guerra case it is said at paragraph 53, referring to earlier jurisprudence:

"The court reiterates that freedom to receive information, referred to in paragraph 2 of Article 10 of the Convention, 'basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him'. That freedom cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to collect and disseminate information of its own motion."

36. The point does not arise in this case, but it seems to me very pertinent that the Strasbourg court does not recognise an absolute right to receive information in the absence of willingness on the part of those holding that information to give it to him. Dr Pelling said that even if that rule were applied here, what the Civil Procedure Rules had done was to introduce a new limitation contrary to common law on the receipt of information, and in that way the state had intervened in a way that was impermissible. I do not agree. The reality of this situation is that the persons who have this information, that is to say the parties in court, may not be willing, indeed may very likely not be willing, that everybody should hear about it. If the state makes arrangements to prevent that information flowing it does not, in my judgement, by that step alone, involve itself in any breach of article 10. Quite apart from that, we have to remind ourselves again of the content of the rule of which complaint is made. It is not, I reiterate again, a blanket ban or any unconditional prohibition on the receipt of information.
37. In his contentions before us, Dr Pelling seemed to assert really a general right, an overriding right, to sit in court and hear what is going on. I cannot see that such a right, if that is which it is contended for, can be based on any rights recognised by the jurisprudence of article 10. In support of his argument in this connection, Dr Pelling refers to two cases other than European Convention cases as such. The first was a judgment of this court in the case of R v Secretary of State ex parte Wagstaff. That case concerned whether the inquiry into the affairs of Dr Harold Shipman should be held in public or in private. It is pertinent to note what the contention was of the relatives of Dr Shipman's actual or alleged victims in saying that they should be admitted to the whole of the proceedings, together with the public should. Their contention as set out by leading counsel, found at the bottom of page 14 of the transcript, was that the interference by holding the inquiry in private was an interference of the families' freedom of expression because it curtailed their right to receive information from other witnesses, and impart information; that is to say, they were not asserting a right to receive information in itself, but saying that if they did not know what other witnesses would have said, they would not be able effectively to take part themselves in the inquiry.
38. True it is that in considering the various aspects that the court had to weigh up, Kennedy LJ, in a passage relied upon by Dr Pelling, said on page 16 in numbered paragraph 4:

"Where, as here, an inquiry purports to be a public inquiry, as opposed to an internal domestic inquiry, there is now in law what really amounts to presumption that it will proceed in public unless there are persuasive reasons for taking some other course. Although Article 10 of the European Convention is not yet incorporated into English law it does no more than give expression to existing law as to the right to receive and impart information."

39. However, it is important to note that again Kennedy LJ did not suggest that the right given by article 10 was an absolute one. He referred to there having to be persuasive reasons for taking another course. He was not addressing therefore a rule such as we are concerned with, which again is not an absolute rule. I do not find anything in the particular circumstances of that case that assists on the construction of article 10 as applied to our case.
40. The other case relied on was the case of Richmond Newspapers Inc v Commonwealth of Virginia [1980] 448 US 555. I fear that I have to say that the citation of that authority and the importance placed on it only serve to underline the very great caution that must be exercised before cases decided under different human rights provisions from those that govern us are claimed to illuminate questions in our own law. The provisions and assumptions and jurisprudence of the 1st and 14th amendments to the United States' constitution, which are what were relied on in Richmond, are not the same, indeed are in some respects far different from the requirements and jurisprudence of article 10 of the European Convention. In Richmond it was decided that persons in the United States of America who had the benefit of the 1st and 14th amendment have a right of access to criminal trials whatever the parties to that may think of the matter. I am not persuaded, despite some statements in the case, that all the judges in the Supreme Court would have extended that view to cases such as we are concerned with here, but whether or not that is the case, that actual decision in Richmond would appear to be not consistent with the general recognition under either article 6 or article 10 of the rights of the parties, if so minded, to waive publicity. Although I agree there are strong statements about the value of publicity in Richmond, statements which to some extent echo what was said in Scott v Scott, the actual decision of the case, and the judgments on which it is based, do not in my view illuminate the European Convention.
41. In my view, therefore, Civil Procedure Rule 39.2(3)(c) is not ultra vires.
42. We turn to the second ground recognised by the Court of Appeal: whether the rules, if they were ultra vires, give power to issue the particular practice direction relating to possession proceedings in private, practice direction 39.2, which we will briefly remind ourselves. Having recited again paragraph 1.2:

"The general rule is that the hearing is to be in public."

43. The Direction says:

"1.5. The hearings set out below shall in the first instance be listed by the court as hearings in private under rule 39.2(3), namely...

(2) a claim by a landlord against one or more tenants or former tenants for the repossession of a dwelling house based on the non-payment of rent."

44. It seems to me that the arguments about this rule stand and fall with the arguments about the vires of rule 39.2(3)(c). There are no different issues that I can see which have not already been dealt with. This practice direction is merely administrative. It does not override the general application of rule 39.2(3)(c), as paragraph 1.8 of the practice direction clearly states. I do not see how a listing provision can start to be, in itself, a breach of article 6 and article 10 in common law or anything else.
45. The third ground is:

"what the practice should be as regards possession hearings should also be established so that there is not a different practice in one court rather than another."

46. That statement in the Court of Appeal's order has become slightly distorted in transmission from the court's judgment, but it is plain what is in issue. This again turns on the legality of the rules and the practice directions. The whole point under those rules is that, in applying them, the courts have a discretion to rule according to cases. I cannot see that relief in terms of ordering a particular practice, and certainly in terms of ordering a uniformity of practice, could be in any way open to this court.
47. The fourth ground is:

"whether small claims being tried in the chambers of a district judge with access only through a locked door with the assistance of the Court staff is a hearing in public."

48. This, as Dr Pelling very fairly said, raises, or appears to raise, questions of fact and degree. Although I entirely understand why the ground was formulated in the way that it is, it is not in my judgment obviously suitable for pursuit in this court. The evidence in regard to it, which was given by Dr Pelling in his application, can, I think, be fairly set out from a letter that he wrote to the county court at Bow complaining about various matters there, which he adopted as part of his evidence in the application. In so far as the small claims court is concerned, he said this at paragraph 5, having described his attempt to attend possession actions:

"At 12 noon I proceeded downstairs, desirous of attending Small Claims cases of which there was a list of 1 hour cases before District Judges Mullis & Mitchell. As you know [this letter is of course written to the Court Manager] there are 4 or so District Judges' rooms or chambers on the Ground Floor, to which access by the public is through a single door, which I call the outer door, leading into passages through to the respective chambers. Unfortunately when I tried to go through the outer door I found it was locked. I therefore spoke to the usher, Ms Rita Brown, saying I would like to attend the Small Claims cases on District Judges Mullis & Mitchell's (joint) list but the entrance door was locked. She said that the public could request to attend and she would then inform the judge. I said I was so requesting to attend and that the public were entitled to attend Small Claims (having in mind 27PD Para 4.1(1)). Miss Brown (and I wrote this down) then said 'Only on the basis that I take you through that door'. This is not a criticism of Ms Brown whom I am sure is only obeying instructions of the District Judges.

6. Miss Brown then went in and shortly after took me through to 'Chambers C' where to my surprise I found District Judge Naqvi hearing a case. This was not what I had asked for, but I seated myself nonetheless to hear what it was about. Unfortunately it was boring, so when later at 12.25 pm the usher came back I left Chambers C with her and asked if I could attend a Small Claim on the list for DJs Mullis & Mitchell. She said DJ Mullis was not sitting but she would ask the other District Judge, and in due course I was permitted to enter 'Chambers A' to hear to the end the case being dealt with by (I assume) District Judge Mitchell, which concluded at 13.05 pm.

7. Chambers A and C had no signs on their respective doors save a bare 'Chambers A' and 'Chambers C'. The door to Chambers C was kept wedged open, the door to Chambers A was kept shut. Neither door has windows. Chambers A had 2 chairs and C had 4, for public use. The list outside showed DJ Naqvi was hearing a 1 day Small Claim case."

49. As we have seen, the matter of the locked door particularly concerned the Court of Appeal in granting permission.
50. Evidence has been filed on behalf of a lady who is an officer at the Bow County Court, Mrs Bennett, which Dr Pelling was good enough to say he did not challenge, or at least he accepted its admissibility. It is necessary to read, I fear, the major part of what she says, starting at paragraph 3:

"In order to address ground (iv) as defined in the order of the Court of Appeal I will begin by describing briefly the layout of the areas of Bow County Court to which the public has access. On entering the building the counter used for issuing claims and applications and other such business is to the right. Directly in front of the entrance to the building is a desk manned by a security guard and the court ushers, and behind that is the entrance to Court 5, which is normally used for hearings before Circuit Judges. Immediately to the left of the entrance is a staircase leading to Courts 1, 2, 3 and 4. Adjacent to the staircase is the locked door which leads to the three rooms used by District Judges on the ground floor.

4. Usually three ushers work on the ground floor, and at least one usher is always on duty there at any time when the court building is open to the public. On the first floor there is always at least one usher, and sometimes two, on duty.

5. The three rooms used by District Judges on the ground floor are called simply rooms A, B and C. These are small rooms, in which the District Judge, the parties and their representatives, and a maximum of 4 or 5 persons may sit in reasonable comfort. These rooms are used for hearings conducted by the District Judge, and also the offices in which District Judges work on their papers. Each room will therefore typically contain various case papers relating to different matters, standard office equipment and some personal papers and other items belong to the individual occupant. None of these three rooms has a locking door.

6. When conducting hearings in their room the District Judges are not attended by any other court staff, and there is no system for showing whether or not a hearing is in progress at any particular time, for example in the form of an adjustable sign or system of lights. When working on papers the District Judges may work with their doors open or shut, and the District Judges leave their rooms unattended from time to time during the day.

7. At Bow it is thought necessary to keep the door leading to the District Judge's rooms on the ground floor locked for security reasons. It would be too easy for someone to enter that corridor unnoticed or unchallenged, given its position in the building. No equivalent measure is in force in relation to the District Judges's rooms on the first floor. It is also the case that no security problem is perceived to exist there; people coming up the stairs will inevitably meet an usher before reaching those rooms. 8. The locked door leading to the District Judges rooms on the ground floor does not have a sign on it, nor has it ever had a sign as far as I know. Persons unfamiliar with Bow County Court would not be aware that District Judges rooms were to be found in the corridor leading from that door. In the foyer of the court are displayed cause lists. Any member of the public wishing to attend a hearing in chambers which is open to the public can ask an usher who will escort them to the room in question. In practice this occurs very rarely, although we are now and then approached by persons studying law or some other profession. There is nothing displayed in writing at Bow County Court which would tend to suggest to members of the public that they were not entitled to attend hearings of small claims cases before District Judges, and no member of the court staff would seek to give that impression. At one time the sign referred to and exhibited as page 10 to exhibit M of the applicant's affidavit was displayed in various parts of the building."

51. [That is a sign which states:

"No persons beyond this point unless instructed by a member of staff."]

"I think that it originated when, due to building works and serious pressure on accommodation, what was Court 4 on the ground floor was used for a variety of hearings, including chambers hearings in family matters, and it was thought prudent to warn members of the public not to enter unless they had received confirmation that they were entitled to do so. The wording of the sign was then adopted elsewhere in the building, but after the applicant complained in November 1999 all these signs were removed and have not been used since."

52. It is therefore clear that the arrangements in the Bow County Court were not fully before the Court of Appeal when it granted permission on this point. There is indeed a locked door, but an explanation was given both of the reason for that and of steps taken to admit the public to enter through that door. The case in my judgement is not like the case of the locked door in the case relied on by Dr Pelling, Storer v British Gas [2000] 1 WLR 1237, where there was not only a locked door, but a sign saying "Private. No admittance", serving as a positive deterrent to attending the hearings. The question for us is whether the arrangements as a whole sufficiently inhibited members of the public from attending court as to make the hearing one in private, rather then in public. I am quite clear on the facts as they now appear that it did not do so, and the hearings to which this ground relates did not take place other than in public. I am, however, even more clear than that that this aspect of the case does not justify the issue of any relief by this court.
53. For those reasons therefore I would dismiss this application in its entirety.
54. MR JUSTICE PENRY-DAVEY: I agree.
55. LORD JUSTICE BUXTON: Yes, Mr Sales.
56. MR SALES: In view of your Lordship's judgment, I ask for the Lord Chancellor's costs of these proceedings.
57. DR PELLING: The only objection I have is that I have raised points of considerable public importance which might make it appropriate for no order for costs.
58. LORD JUSTICE BUXTON: The costs of the Lord Chancellor will be paid by the applicant, Dr Pelling.
59. DR PELLING: My Lord, I would like to ask for leave to appeal to the Court of Appeal.
60. LORD JUSTICE BUXTON: Do you want to say any more on that?
61. DR PELLING: The only reason I would advance at this stage is, again, the point that it is a matter of great public importance, I would say constitutional importance, and on that ground I request leave.
62. LORD JUSTICE BUXTON: No, we do not grant you permission.
63. DR PELLING: In that case, I shall be applying to the Court of Appeal. I wonder if you could give me this assistance: could you extend the time to 21 days from the usual 14 in which I must make my application for leave to appeal of the Court of Appeal? The reason why I do need time is that I have to go to Strasbourg next month to argue the other case on this kind of issue at the European Court, and I am under some pressures, and I would appreciate if I could have longer than 14 days.
64. LORD JUSTICE BUXTON: I am not certain we have vires to extend that time.
65. DR PELLING: I believe you have.
66. MR SALES: May I check that?
67. LORD JUSTICE BUXTON: Yes.
68. MR SALES: I rather think you do.
69. LORD JUSTICE BUXTON: Is anybody able to find a quick answer to this?
70. MR SALES: Could I suggest that your Lordships deal with the point, because I am neutral on it, rather than take up the time of the court. I would hope to be able to agree the position with Dr Pelling.
71. LORD JUSTICE BUXTON: We grant you 21 days in which to apply to the Court of Appeal.
72. DR PELLING: I am grateful. The last request I have my Lord is could the order for the court, when it is drawn up, make quite clear your granting me permission to submit my notice to amend and adduce on the further affidavit. I understand you did proceed on that basis that I would be allowed.
73. LORD JUSTICE BUXTON: I am not certain we need to put that in the order. Why do you want it in the order?
74. DR PELLING: It does need leave of the court, I think that is in order 53. I issued the required notice to amend my statement with the supporting affidavit, and the rule says the court can admit or allow such an amendment and admit a further affidavit if it so chooses. It actually needs leave of the court. I do not want the Court of Appeal to raise the point that the court below did not allow me to put in that affidavit or amend that statement.
75. LORD JUSTICE BUXTON: I think the Court of Appeal will not have any difficulty on that point. I will consider that.
76. DR PELLING: Thank you my Lord.
77. My Lord, one small point: would it be possible to have at least one of the bundles and skeletons returned to me? I think the transcriber will need one.
78. LORD JUSTICE BUXTON: Would you like to have a word with Mr Armstrong about that.
79. MR SALES: In case your Lordship is interested on the jurisdiction point, your Lordships do have jurisdiction: page 762 in Volume one of the White Book.
80. LORD JUSTICE BUXTON: Thank you very much, that is very helpful.