England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
SITTING AT CARDIFF CIVIL JUSTICE CENTRE

		Cardiff Civil Justice Centre 2 Park Street, Cardiff, CF10 1ET
		9 January 2009

1. JUDGE JARMAN: This is an application for permission to proceed with a claim for judicial review which was received into the Administrative Court office on 24 September 2008, the claimants being D and MD Williams. The date of the decisions sought to be judicially reviewed are various decisions of the district judge and then on appeal to HH Judge Farmer  QC sitting in Rhyl County Court on 25 October 2007, 14 February 2008, and 19 August 2008. They relate to a road traffic claim bought against Mr and Mrs Williams in the Rhyl County Court by a neighbour, Miss Emma Williams Owen whose partner was driving, he says, a vehicle close to the defendants' farm, known as Henlas Farm, when there was a collision with a tractor. The matter came before the district judge in the first instance for a decision as to who was responsible for the accident.
2. Part of the defence of Mr and Mrs Williams was they had no agent or servant at the farm who would have been responsible for driving the tractor on the day of the accident. There was disputed evidence from the claimants that Mr Williams had attended upon them after the accident. Certain references were made to the accident and to damage to the tractor. The claimants said the tractor in question was an old blue Ford tractor.
3. The district judge found the liability for the accident was equally shared between the driver of the claimant's vehicle and the driver of the tractor and he gave judgment accordingly including judgment against Mr and Mrs Williams.
4. They sought to appeal that decision and it was that appeal that came before HH Judge Farmer  QC. On 19 May 2008. and he made a number of rulings. Those included that the respondent should have permission to interview Gwyn Evans within 14 days, that the respondent should file with the court and serve on Mr and Mrs Williams any further material to be relied upon in the application including any skeleton argument within 7 days and the application should be further considered by the court and at the hearing of which the parties should be informed of administratively within 28 days. Costs were reserved.
5. Gwyn Evans was a person from whom a statement had been subsequently obtained by Mr and Mrs Williams to say it was he who was driving a blue Ford tractor on the day of the accident and it was he who denied it was the claimant's partner and that he, Gwyn Evans, had nothing to do with Mr and Mrs Williams.
6. By notice of hearing which went to Mr and Mrs Williams, the oral hearing of the appeal,was to be finally determined on 19 August 2008. The letter dated 11 August refers to the hearing being by way of directions but the appeal proceeded on the basis of the renewed oral application for permission to appeal. The judge refused that application. The reasons he did so were as follows. He records the application was refused. He said the applicant wished to adduce fresh evidence. This evidence was available at the date of the original trial and not produced. In any event, it was, said the judge, of questionable reliability. He said there had been reasons given for this on three occasions and no reason to change. There was no real prospect of success and no compelling reason to give permission.
7. Mr Williams seeks to judicially review those decisions. The matter came initially before HH Judge Gilbart QC, sitting as a deputy High Court judge who, by an order dated 26 November 2008, amended on 1 December 2008, refused permission to proceed with the application for judicial review. Mr Williams, therefore, renews the application for permission before me today.
8. At the start of this morning, through my clerk, I handed to Mr Williams a copy of a decision in R on the application of  Strickson v Preston County Court and Others [2007] EWCA Civ 1132, a decision of the Court of Appeal in which Laws LJ gave the judgment and Gage LJ and Rimmer LJ agreed. I took that course because I felt it would be fair to Mr Williams that he should be able to focus upon the high hurdle which he would have to surmount before persuading a court to give permission to bring judicial review proceedings against a judge of another court.
9. The Strickson decision examined circumstances in which the High Court may properly entertain a judicial review of orders made by a judge in the County Court. In that case, the appellant had sought declarations and damages in relation to the unfortunate death of his daughter when she was 13-years of age. The High Court judge held that both the district judge and the County Court judge had reached wrong conclusions but, nevertheless, declined to grant relief by way of judicial review. The Court of Appeal was asked to overturn that decision.
10. Laws LJ, in the course of a detailed judgment, referred to a number of previous authorities on this particular point. He referred to the House of Lords case of Anisminic [1969] 2AC 147 and also two previous Court of Appeal cases, Gregory and Turner [2003] 1 WLR 1149 and Sivasubramaniam [2003] 1 WLR 475. In reviewing the authorities, Laws LJ at paragraph 26 said this:

"For completeness and clarity, I should say a word about what is called "pre- Anisminic sense" of jurisdictional error. Anisminic was, of course, the seminal case in which their Lordships' House held -I summarise very broadly- that any error ruled by a tribunal, certainly an administrative tribunal, was an error of jurisdiction. The narrower pre Anisminic sense of jurisdiction referred to the tribunal's right to embark upon the question in hand at all: what might be called the condition precedent where it is having any jurisdiction in the matter. The issue whether, having perfectly properly embarked upon some question, the tribunal then arrived at the wrong answer, was on this occasion an entirely different matter, and not an issue of jurisdiction at all."

11. Then at paragraph 32, the Lord Justice continues as follows:

"I think a distinction may be drawn between the case where the judge simply gets it wrong, even extremely wrong (wrong in the law, or the facts, or both), and the case where, as I would venture to put it, the judicial process itself is being frustrated or corrupted. This, I think, marks the truly exceptional case. It will or may include the case of pre Anisminic jurisdictional error where the court embarks upon an inquiry which it lacks all the power to deal with, or fails altogether to inquire or adjudicate upon a matter which it was its unequivocal duty to address. It would include substantial denial of the right to a fair hearing and it may include cases where the lower court has indeed acted "in complete disregard of its duties" (Gregory), and cases where the court has declined to go into a point of law in a particular area which, against a background of conflicting decisions of a lower tribunal, the public interest obviously requires to be decided (Sinclair). The Sinclair type of case is perhaps a sub-class of the Gregory case. Both in any event may be less hard-edged than the pure pre Anisminic jurisdictional error case. The courts will have to be vigilant to see that all the truly exceptional cases - where there has indeed, as I put it, been a frustration of corruption of the very judicial process - are allowed to proceed to judicial cases where further appeals' rights are barred by section 54 (4)."

The reference to that section is to the Access to the Justice Act 1999 whereby the refusal of permission to appeal was the end of the road for the appellant in relation to any statutory right of appeal as is the case here. The appellant's only recourse then is to seek judicial review and that is what has also happened in this case.

12. Accordingly, Mr Williams, having had an opportunity to read that test that ought to be applied in these sorts of cases, did indeed put his case on the basis that the judicial process has here been corrupted. He took me to a number of documents to show that had been the position. First of all, he took me to a letter dated 16 October 2007 from the solicitors acting for the claimant in the road traffic claim. The hearing was due to take place some nine days later on 25 October 2007. A request had been made for that date to be vacated. In reply, the claimant's solicitors, Proddow Mackay, said they were agreeable to the hearing date being vacated. By letter dated 22 October 2007, Halliwell's wrote to Mr Williams. They were solicitors acting for his insurers, NFU Mutual Insurers,. That letter confirmed that NFU Mutual had made a decision not to indemnify Mr Williams in connection with that accident. The solicitors highly recommended that Mr Williams obtained independent legal advice immediately.
13. Mr Williams then by letter dated 23 October wrote to the court pointing out he no longer has solicitors and he ought to have an opportunity to seek other solicitors. The next day, a fax went out to Mr Williams saying the matter had been considered by Deputy District Judge Clayton but the hearing would remain in the list for 25 October 2007. As Mr Williams had demonstrated the fax which he received was unfortunately partly obliterated. It missed out the substantive part of the order. That fax was received by him at 11.40am. It was not until 2.28pm the same day that he received a complete copy from his insurer's solicitors.
14. What he says, therefore, is that he was not left with a sufficient time to obtain other solicitors. He puts this as a plot between the claimants, his insurers and the court to prevent him from having a fair hearing. I note this was not a complex legal matter. It was a question as to who was responsible for an accident between a vehicle and a tractor.
15. It is not for me to express a view as to whether I agree with the decision of the district judge not to adjourn the hearing nor is it for me to say what I would have done in similar circumstances. Following on from the decision of the Strickson case on the passages in the judgment of Laws LJ which I have quoted, it must be shown that the judicial process was corrupted. Mr Williams says the documents he referred to, and I referred to in this judgment, are sufficient to prove there was a plot between the court and the claimant and his insurers to ensure Mr Williams did not obtain representation.
16. I cannot say the documents which I have been shown and referred to do go anywhere near to showing such a plot. As I have indicated, even though the claimant's solicitors were agreeable to an adjournment and despite the late withdrawal by NFU Mutual of possible support, this was a fairly straightforward road traffic accident and there is nothing to show the sort of plot or corruption which Mr Williams relies upon.
17. He then criticises the appeal process. First of all, he says when the application first became before Judge Farmer and that judge gave a full judgment on 15 February 2008, the transcript shows that the judgment referred to points made by the other side and not to those made by him. He says it is unfair and it discriminated against him in favour of the other party. However, at the end of that decision, the judge did adjourn and said he would consider the further merits of the renewed application for permission to appeal and it was in those circumstances he gave the other side the right to examine the documents. Mr Williams points out and relies upon the fact that the letter just before the final hearing of that appeal on 19 August 2008 suggested it was a directions' appointment. That was unfortunate but, in my judgment, it ought to have been apparent to him from the previous judgments that the final hearing of the application might be held. That is what indeed took place. He attended. He said he was not ready to take part in that final appeal hearing but it was not clear to me exactly how he said he was prejudiced when the matter had already been the subject of previous hearings.
18. What he says is he had no chance to obtain the evidence of Gwyn Evans until the decision went against him before the district judge. He appeared to suggest it was for the claimant to bring those proceedings to prove his case and the onus should have been on the claimant to make all the necessary inquiries as to witnesses and who was driving the tractor in question. It seems to me this fundamentally misconceived the nature of adversarial litigation. Mr and Mrs Williams had clearly, in their defence, raised the possibility or the case that the tractor was not driven by anyone on their behalf. It was for them evidentially to obtain whatever evidence they could to support that case. It was quite clear from what was submitted to me that Mr Williams only decided to do that when an adverse decision was made against him and had not taken any steps to do it beforehand.
19. The reasoning of Judge Farmer, therefore, it seems to me, cannot be faulted. He proceeded on the usual rule that fresh evidence will only be admitted if it could not, with reasonable diligence, have been obtained sooner. If I am wrong about that, in any event, it does not suggest to me there has been the sort of frustration or corruption of justice which it would be necessary to show to make good a claim for judicial review.
20. Mr Williams also points to the fact that no skeleton argument or material had been served upon him pursuant to the May 2008 order and yet the other side were present at the final hearing on 19 August 2008 with,what Mr Williams called a defence. He accepted, in fact, no skeleton argument was filed and it seemed to me the order in May 2008 was permissive only. It may have been more courteous, if the other side were going to rely upon the rule relating to fresh evidence, had they filed a skeleton argument. That rule, it seems to me, was one which the judge in any event was likely to have applied which, in the end, he did.
21. Accordingly, I have to ask myself before I give permission to continue with the application for judicial review whether I have been persuaded that Mr Williams has a reasonable prospect of success and having regard to the very high obstacles and thresholds which are in his way as a result of the series of cases which are referred to in the Strickson case. I have come to the clear conclusion thatMr Williams has not been able to surmount that threshold and accordingly, permission is refused.