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Cite as: [2001] EWHC Admin 1088

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Sivasubramaniam, R (on the Application of v Kingston-upon-thames County Court [2001] EWHC Admin 1088 (13th December, 2001)

		Neutral Citation Number: [2001] EWHC Admin 1088
		Case No: CO/3429/2001

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

St Albans Crown Court
The Court Building
St Albans
AL1 3JW

13th December 2001

B e f o r e :

THE HONOURABLE MR JUSTICE HOOPER
____________________

The Queen on the application of Markandu Sivasubramaniam

Claimant

- and -

Kingston-upon-Thames County Court

Defendant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Markandu Sivasubramaniam appeared in person
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

MR JUSTICE HOOPER:

This is an application for judicial review brought by the claimant in person. According to the judicial review claim form the defendants are the management of Guildford College of Further and Higher Education and Mr Gordon Davies of that College. The date of the challenged decision is said in section 3 of the claim form to be 10 August 2001. During the oral hearing it became clear that the claimant wished to challenge what he said was a decision made by His Honour Judge Morgan sitting in the Kingston upon Thames County Court on 3 July 2001.

Given that the challenged decision is that of a judge and not the defendants named in the claim form, I order an amendment of the claim form to show as the defendant the Kingston upon Thames County Court.

To assist me to understand the history, the County Court provided me with the file. The file has enabled me to untangle the history of the proceedings, a task which took some considerable time.

A letter dated 5 July 2001 and accompanying order sent to the claimant on 5 July indicates that His Honour Judge Morgan had refused on 3 July the claimant’s application dated 25 June for leave to appeal. That however cannot be right. The learned judge had already refused permission to appeal at an oral hearing at which the claimant was present on 11 June 2001. That becomes clear from the order drawn up on 13 June, following the 11 June hearing. The order stated that the claimant’s applications were dismissed. The two applications were dated 3 May 2001 and 27 February 1998. The order further stated that there was to be no order as to costs and that permission to appeal was refused.

In the light of that it seems clear, and this is confirmed by an entry in the file, that what the judge was doing on 3 July was to give his reasons for having refused permission to appeal on 11 June. The challenged decision is therefore effectively the decision of 11 June refusing permission to appeal, the reasons for which refusal were given on 3 July in writing.

On 3 July 2001, the Judge wrote:

“No real prospect of appeal

No error of law by either District Judge in respect of either order.

Substantial delay by Claimant after recovery from mental illness before pursuing applications and no important point of principle.”

The file makes it clear that the two orders referred to are orders made by District Judge Coni on 27 October 1997 and by District Judge Dimmick on 24 February 1998.

The Court file shows that the claimant’s applications had been seen by His Honour Judge Bishop who had ordered a hearing:

“for the claimant’s application for permission to restore application/appeal/directions”.

I start with the application of 3 May considered and dismissed by His Honour Judge Morgan at the oral hearing on 11 June. The application was, the learned judge wrote:

“In substance for permission to appeal order dated 27th October 1997 striking out parts of claim and directing balance to be tried by arbitration hearing by District Judge.”

The order made on 27 October 1997 can be found set out at page 16 of the bundle. District Judge Coni, sitting in the county court, having heard the plaintiff in person and the defendant’s solicitors, ordered that various paragraphs of the plaintiff’s claim were to be struck out and that he be given leave to amend his claim to a limit of Ł3,000. The District Judge ordered that this claim was to be heard under the then arbitration provisions. He ordered that standard arbitration directions should be issued.

His Honour Judge Morgan does not, on the papers available to me, seem to have specifically addressed the issue of the need for an order extending the time for the bringing of the application. The explanation for the delay put forward by the claimant can be found in a document set out at page 26-27 of the bundle. In March 1998 his flat had been broken into by a doctor, a social worker and others. In the words of the claimant “It was a murder plot”. He was taken to Springfield Mental Hospital where he was put under compulsory medication “which weakened me mentally and physically and almost it was crippled me to death”. He says that they demanded that he close all of his court cases. In another document he states that during this period someone stole his court orders, conducted all four of his cases and obtained the dismissal of all four. In another case in which I am also giving judgment today concerning the same claimant, he stated in a document that he had been forced himself to close the cases.

I turn to the application dated 27 February 1998, which was an application to set aside the arbitration award dated 24 February 1998. That was also considered by His Honour Judge Morgan on 11 June and dismissed.

The arbitration took place on the 24 February 1998. Although in the document which he sent to Kingston upon Thames County Court he claimed to have defeated the defendants in that arbitration hearing, he accepted before me that his action had been dismissed. The file shows that it was District Judge Dimmick who dismissed the action on that day, making no order for costs.

His Honour Judge Morgan, when giving his reasons on 3 July for refusing permission to appeal noted that the application had been withdrawn on 24 August 1998 but that the claimant was “seeking to restore”.

According to one document prepared by the claimant there had been a hearing on 27 February “without my knowledge and without my presence and all my claims were dismissed” (see page 26). According to another document prepared by the claimant (page 7) the application of 27 February 1998 to set aside the arbitration award was dismissed later without his knowledge, he being in hospital. He claims that someone had impersonated him.

The County Court file shows that the claimant had written to the Court on 26 May 1998 and 8 June 1998 stating that he was being held against his will in hospital and asking for the hearing to be adjourned until he came out of hospital. His detention in hospital was confirmed in an accompanying document.

By letter dated 25 June 1998 the claimant’s then solicitors, Askok Patel and Co., asked to withdraw the application to set aside the award. The letter states:

“We have been instructed by the above named client in respect of his case which we understand is being heard on the 24^th August 1998 at 10.00 a.m. Our client wishes to withdraw his application as he is at present detained at the Springfield Hospital under section 3 of the Mental Health Act. Under the circumstances our client is not in a position to conduct the matter. In the light of this we look forward to receiving confirmation that the above hearing has been vacated.”

That letter was sent to the defendant’s solicitors asking whether they agreed to the request. There having been no reply, a judge on 24 August 1998 granted the claimant leave to withdraw the application.

It seems to me that the application of 3 May was treated by His Honour Judge Morgan as an application for permission to appeal the decision of District Judge Coni on 27 October 1997 . It further seems to me that His Honour Judge Morgan must have, impliedly, granted the necessary extension of time notwithstanding his reference to “substantial delay” in his 3 July reasons for having refused on 11 June permission to appeal. (If he had refused an extension, the claimant could seek permission from the Court of Appeal to appeal that refusal, see Foenander v. Bond Lewis and Co. [2001] EWCA Civ 759, [2001] 2 All ER 1019)

If I am right, then the learned judge, having refused permission on June 11 to appeal the decision of District Judge Coni, there was no further right of appeal. This follows from section 54(4) of the Access to Justice Act 1999 which provides:

“No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).”

That leaves the question whether or not the claimant can proceed by way of judicial review of the decision by the learned judge to refuse permission to appeal the decision of District Judge Coni on 27 October 1997. For the reasons which I am giving today in The Queen on the application of Mahon v. Taunton County Court [2001] EWHC Admin 1078, judicial review is not available in these circumstances to challenge such a decision.

Insofar as the application dated 27 February 1998 is concerned, His Honour Judge Morgan must have considered it on its merits, in effect ignoring, in favour of the claimant, the order made following the solicitor’s letter of 25 June. CPR Part 27 as the successor to CCR Order 19 would have applied to it. Although CPR Part 27 has now been replaced by CPR Part 52, that does not affect this notice of appeal which was filed before 2 October 2000. Under Part 27 a Circuit Judge may dismiss the appeal without a hearing or, on notice to the parties, list the appeal for hearing. Although I am not aware whether the defendant was notified of the appeal, the learned judge, it seems to me, dismissed the appeal after a hearing. If I am right, the learned judge had no power to grant or refuse an application for permission to appeal. Such an application must be made to the Court of Appeal (see Manual of Appeals, paragraph 2.5).

I shall treat this application therefore as a challenge to the decision to dismiss the appeal from the decision of District Judge Dimmick on 24 February 1998. Given that there is an appellate remedy available to the claimant, it is not arguable that this Court would quash the decision of His Honour Judge Morgan to dismiss the appeal. In circumstances like these, judicial review is not an appropriate remedy where there is an appellate remedy.

For these reasons this application for permission fails.