England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		6 November 2014

1. MR JUSTICE KNOWLES: Mr Brown seeks judicial review in respect of the way in which certain matters have proceeded at the Clerkenwell and Shoreditch County Court.
2. He was given permission to bring this judicial review by Holman J on 8 May 2014, following an oral hearing. Since that oral hearing, a transcript of an earlier hearing before Deputy District Judge Sofaer at the Clerkenwell and Shoreditch County Court on 1 August 2013 has been provided, as ordered by Holman J, and Mr Brown has also provided a witness statement pursuant to an order made by Ouseley J. Mr Brown appears in person today; the defendant does not appear.
3. In the earlier proceedings before the Clerkenwell and Shoreditch County Court, Mr Brown found himself the subject of orders to pay sums amounting to just over £2,000. An interim charging order, which was briefly discharged but then reinstated, was made in favour of NSL Services Group Limited. Then, by Deputy District Judge Sofaer at the hearing on 1 August 2013, a final charging order was made, or a continuation of the interim charging order was ordered.
4. A restriction on the land registry has been entered but no attempts to enforce the charging order have been made, to date, to Mr Brown's knowledge. Nor has Mr Brown paid anything. NSL Services Limited has been made an interested party in these judicial review proceedings but does not appear today.
5. I summarise, but Mr Brown criticises five things, essentially, about the hearing before Deputy District Judge Sofaer.
6. First, he says that the Deputy District Judge assumed that more had been dealt with by a District Judge at an earlier hearing on 12 June 2013, when the interim charging order was reinstated, than was in fact the case.
7. Second, he contends that Deputy District Judge Sofaer was wrong to say that he might only deal with matters that had arisen since 12 June 2013.
8. Third, Mr Brown says that District Judge Sofaer should have allowed him to address the whole principle of a charging order, rather than starting from a position that there was already an interim charging order and reasoning that should become final unless there was a reason why it should not.
9. Fourth, Mr Brown contends that Deputy District Judge Sofaer declined to require the debt that would be the subject of the charging order be broken down into its constituent elements.
10. Fifth, Mr Brown contends that Deputy District Judge Sofaer did not deal with the (admittedly) small point of set-off against the debt of a sum of £18 that on one occasion had been awarded in favour of Mr Brown.
11. I have been referred to passages in the transcript of the hearing before Deputy District Judge Sofaer, and Mr Brown has highlighted the passages that concern him most.
12. I am quite clear that the proper course to take in relation to these criticisms of the hearing before Deputy Judge Sofaer, and also to deal with the points going to the substance of the objection to the suitability of a charging order at all, was by way of appeal to a Circuit Judge.
13. Indeed, Mr Brown appears to have recognised that that was the proper course because he sought permission to bring such an appeal. He completed an appellant's notice, dated 19 August 2013. His application for permission to bring an appeal was considered on the papers by HHJ John Mitchell on 4 September 2013.
14. Judge Mitchell refused permission to appeal, giving some written reasons. Judge Mitchell added an order that stated that Mr Brown had the right to apply to set that refusal aside, or to vary it, and if Mr Brown wished to make such an application, he:

"Must send or deliver the application to the court (together with any appropriate fee) to arrive within 7 days of the service of this order."

15. Mr Brown sent a letter to the court dated 11 September 2013. That was within the time allowed by the order of Judge Mitchell, if one allows for the time taken for service of Judge Mitchell's order on Mr Brown.
16. The letter of 11 September was headed: "Application for Oral Hearing On Appeal from District Judge in the case of Irving Brown v NSL Services Group Limited."
17. It began:

"Irving Brown applies for an oral hearing with respect to his appeal from Deputy District Judge Sofaer's order of 1 August 2013, granting the defendant a final charging order over the claimant's land. The appeal was dismissed by HHJ John Mitchell on 4.9.13 considering the papers in the case which order was received by the claimant on 6.9.13."

18. Mr Brown did not use the prescribed form, but the words he did use were clear enough. He did not attach the appropriate fee but that was because he wanted to seek fee exemption, as he had done when completing the appellant's notice. He understood that such an application for fee exemption required him to send an original document showing that he was in receipt of pension credit.
19. That, again, is what he had done when completing the appellant's notice and the court still had the original document that he sent then. He made this fact clear in his letter of 11 September. He went on, in that letter, to make various suggestions and one of those suggestions included a request for an extension of time to make the fee exemption application once the court had returned the original document so that he could resubmit it.
20. One can debate whether Mr Brown should have made an application for fee exemption on the appropriate form and asked the court to attach the original document to it that the court still held. But it is clear enough that Mr Brown was asking for fee exemption; that the court had the original document; and that he was asking for time to be extended if needed.
21. The application for an extension of time was not dealt with. I have seen no consideration of the question whether he had sufficiently applied for fee exemption, and so also - and crucially - there has been as a result no oral hearing of his application for permission to appeal to the Circuit Judge.
22. It is not too late. Time has passed but nothing irrevocable or irretrievable has been done. The charging order remains there but steps have not been taken to enforce it. This is not yet a case where the right to a fair hearing has been breached but it is one in which steps should be taken now to ensure that it does not become such a case. I am satisfied that the relief I can and should give on this application is as follows.
23. First, to direct that Mr Brown's application for fee exemption in relation only to an oral hearing for permission to appeal to the Circuit Judge against the decision of Deputy District Judge Sofaer, making a charging order, is to be treated as having been successfully made.
24. Secondly, to direct that an oral hearing of Mr Brown's application for permission to appeal be listed before a Circuit Judge at the Clerkenwell and Shoreditch County Court at the first available date, and on notice to NSL Services Group Limited.
25. I have considered whether a suitable course would instead be to say to Mr Brown that he could consider a fresh application to remove the charging order. Or consider awaiting an attempt to enforce the charging order before raising, or raising again, his objections. Each of those courses has its drawbacks. It is in my judgment better while there is the opportunity as there is in this case, to complete the course that proceedings have in fact taken.
26. Mr Brown has told me about the substance of his reasons for saying that a charging order is inappropriate. These include points about the names in which applications against him were made and granted, and about the quality of the evidence used to obtain orders against him.
27. I express no view on the merits on those points, because that is for the Circuit Judge. The fact that I am willing to make the two orders that I do does not mean that there are merits in these points. I am making the orders I do simply to ensure that there is proper process and proper consideration of what Mr Brown has to say.
28. This is also why I do not, although Mr Brown asked me to, make orders discharging the charging order or removing an entry on the Land Registry. Nor do I take this matter out of the hands of the proper court (that is, the Clerkenwell and Shoreditch County Court).
29. It is also why Mr Brown would be well advised to seek some objective legal assistance in this matter. He is at risk of adverse costs if he continues and fails; and regardless of the charging order, and the breakdown of the debt behind it, there is debt that, on what he has said to me, he cannot pay.
30. I encouraged him before commencing this hearing to seek assistance from a Law Centre or Citizens Advice Bureau; specifically, for example, the Royal Courts of Justice Advice Bureau in this building, and I renew that encouragement now.
31. Mr Brown, that is my decision. You are, in summary, going to have the opportunity of an oral hearing before the Circuit Judge and that oral hearing will proceed on the footing that your application for a fee exemption for that hearing has been granted.
32. THE CLAIMANT: So, I do not have to fill in a form?
33. MR JUSTICE KNOWLES: No.
34. THE CLAIMANT: In fact, I do not have to do anything, except wait for the date.
35. MR JUSTICE KNOWLES: You have to wait for the date. It will be in your interests to be in touch with the court. You will have to consider your paperwork, make sure that you are fully on top of that and, as I have indicated, NSL Services Group Limited will be given notice of the hearing. They may or may not provide material that you will have to take into account.
36. Thank you for your time and assistance, and for the clarity with which you put your case. I am going to hand you a copy of that decision back. (Handed) That is, I think, the end of your engagement with this court.
(The court adjourned)