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
		19 March 2015

1. MR JUSTICE JAY: This is an application for judicial review of a decision of HHJ Moloney QC ("the Circuit Judge") given on 6 August 2013 at the Southend County Court. In that decision the Circuit Judge (a) refused permission to appeal again the judgment of Deputy District Judge Livesay ("the District Judge"), given on 31 May 2013, following a trial of the claim for damages again the claimant under a hire purchase agreement and (b) determined that the District Judge's decision was within the permissible grounds of his discretion.
2. It is noteworthy that the Circuit Judge made an unappealable decision under the Civil Procedure Rules. Judicial review is the only theoretically available remedy. However, it far from follows that this court, exercising its supervisory jurisdiction, should approach its review obligations as if it were the Court of Appeal. Indeed, as will be made clear subsequently, that will not be the correct approach.
3. The claimant, who happens to be a member of the Bar, entered into a lease purchase agreement with Lombard North Central plc ("Lombard") in May 2005 in relation to a motor vehicle. It is said by Lombard that on 31 January 2008 the claimant did not pay the monthly rental payment of £406.60 due under the agreement. There was a dispute between the claimant and Lombard as to whether other payments were not made and indeed it was the claimant's position that he did in fact make the January payment.
4. Under the terms of the agreement, failure to clear the outstanding arrears within 28 days may be treated as a repudiatory breach of contract. Lombard purported to exercise its rights under the agreement; it was terminated and the motor vehicle subsequently repossessed and sold leaving a shortfall.
5. Repossession took place, on my understanding, in April 2008. After some considerable delay, which has not been explained, on 23 May 2001 Lombard issued a claim against the claimant for the balance of the amount it said was due and owing under the agreement. The claim was issued on Money Claim Online, but it was eventually transferred to the Southend County Court, being the defendant to these proceedings for judicial review.
6. It is unnecessary to rehearse all the somewhat protracted pre-trial steps and skirmishes which ensued. On 30 August 2012, the County Court, which at that stage was the Basildon County Court, dismissed Lombard's application for strike out and/or summary judgment. It may be inferred that the District Judge on that occasion considered that there was a trialable issue which might require oral evidence for its adjudication.
7. On 28 November 2012, a District Judge at the Basildon County Court made directions for the trial in line with a consent order. Paragraphs 4 and 6 of his order provided as follows:

"4. Trial bundle

The Claimant is to send the Defendant a proposed trial bundle index not less than six weeks before the start of the trial. The trial bundle is to be agreed between the parties.

Not less than three weeks before the start of the trial, the Claimant is to provide the Defendant with the trial bundle on receipt of the Defendant's undertaking to pay the Claimant's reasonable copying costs.

...

6. Trial

The trial should be listed before a District Judge at Southend County Court, with a time estimate of one day to be heard [on the first open date after 18 February 2013 date to be advised]."

Subsequently the claimant's solicitors gave no dates to avoid for the trial.

8. In February 2013, Lombard Solicitors spoke to the Southend County Court and were informed that the claim had been listed for trial at that court on 31 May 2013. It appears that no formal notice was sent by the court to the parties. That was a regrettable oversight. There then followed correspondence between the parties' solicitors regarding trial preparations, although it was not until May 2013 that the trial date itself was mentioned by Lombard Solicitors.
9. For present purposes I proceed on the basis that Lombard Solicitors must have assumed that one way or another their opponents' solicitors were aware of the trial date, although, as it happens, that was not the case. However, I agree with the written submissions of Mr Richard O'Brien, acting for the defendant in these proceedings, that the claimant's solicitors must have been aware in general terms that a trial was proximate. The parties were discussing a trial bundle index in that context.
10. On 10 May 2013, Lombard Solicitors wrote to the claimant's solicitors with reference to the trial bundle. The heading to the letter read "TRIAL: 10AM on 31 May 2013 at Southend County Court". According to paragraph 6 of the skeleton argument of Mr Ahmed Miah for the claimant, this letter was regrettably "overlooked". On 22 May 2013, the claimant's solicitors received the trial bundle. There was an issue as to whether his solicitors then attempted to contact the claimant, but nothing really turns on that. On 22 May 2013, the claimant's solicitors wrote to Southend County Court saying:

"We have just received today a hearing bundle with indication that a hearing is fixed for the 31st May 2013.

We have not received any hearing notice from the Court before the notification from the Claimant today.

Firstly, we would be grateful if you can kindly confirm that a hearing has been scheduled for the 31st May 2013 and if this is the case, we request an adjournment of the hearing date as we would be left with little time to prepare the case and to instruct a Counsel in this matter."

Lombard Solicitors wrote to the Southend County Court resisting the adjournment on the grounds that (a) there had been extensive correspondence in relation to a trial bundle throughout the spring, (b) its letter dated 10 May 2013 specifically referred to the trial date of 31 May, and (c) there was no reason, in any event, why the claimant could not properly prepare for trial as the issues were quite straightforward.

11. On 24 May 2013, a District Judge sitting at the Southend Crown Court refused the application to vacate the trial. On 31 May 2013, the claimant did not appear at the trial of the action, although he had instructed solicitors to apply to adjourn the trial. As Mr O'Brien points out, it was only after 22 May that the claimant had informed his solicitor that he was unable to attend the trial because he was engaged in a criminal trial, which it seems had overrun. That trial started at Snaresbrook Crown Court on 7 May 2013. I am informed by Mr Miah, and I accept, that owing to difficulties with the trial generally, and illnesses with one or more jurors, the trial had overrun and moreover there were extremely late sitting days.
12. It also seems clear, although the chronology does not demonstrate exactly when this occurred, that the claimant asked the trial judge at Snaresbrook Crown Court not to sit on 31 May 2013, but that application was refused. The defendant seeks to rely on an attendance note of the proceedings before the District Judge. This has come to light extremely late in the day, the explanation being that it only came into possession of the defendant through its counsel on 27 February 2015. The attendance note was made by Mr Stephen Johnstone, a trainee solicitor employed by Shoosmiths LLP, Lombard Solicitors in the underlying action. He says that he took a full and detailed handwritten note of everything said at the trial, which took place on a Friday, and that he typed it up on the following Monday.
13. The claimant's solicitor, Mr Oluwaseyi Ojo, disputes the contents of the note on the basis that he was not present at the hearing; Dr Ogunsanya was present. The note asserts that Mr Ojo was present. Mr Johnson has given a further witness statement on 9 March 2015 in which he explains that he assumed that the claimant's solicitor was Mr Ojo, because he was the gentlemen with whom he had been dealing throughout, and that he must have erred in relation to this. I accept Mr Johnson's explanation, but nothing turns on it. I will have regard to the attendance note as the best evidence of what occurred, although there is a proper transcript of the District Judge's judgment.
14. The claimant's solicitor, whom I agree must have been Dr Ogunsanya, applied to the District Judge to adjourn the trial. He submitted that the claimant was engaged at trial at Snaresbrook Crown Court and did not receive notice of the trial. He also said that on 22 May, when he wrote to the defendant court, he was unaware that the claimant was engaged in a Crown Court trial. Counsel for Lombard submitted that the claimant, as a barrister, "would have known the courtesy of writing to the court". The District Judge agreed, but in my view that was, with respect, somewhat pompous, but in any event would have been a "counsel of perfection". The claimant intended no discourtesy and had attempted, but failed, to be excused from his Crown Court trial.
15. Moreover, it might be said, as I pointed out in argument, that the claimant as a barrister prioritised the interests of his criminal client over his own personal interests. On the other hand, it would have been highly preferable had the claimant taken some time to set out relevant matters in a witness statement so that the District Judge had the full picture. Counsel for Lombard was able to refer the District Judge to the letter dated 10 May 2013, which was quite a strong forensic point against the adjournment application. The District Judge's decision refusing the adjournment application, according to the attendance note, reads as follows:

"The DJ [District Judge] stated that the Trial had been listed since February 2013. The DJ commented that it was surprising that he had received nothing other than a download of the crown court for yesterday's list, not even today's list and received nothing from the defendant. The DJ stated that he had seen the claimant's solicitor's letter dated 10 May 12013 confirming the date of the Trial which gave the defendant ample time to make an application. The DJ noted that the defendant's solicitors had written to the court before but did not raise these issues.

DJ - In the circumstances the injustice to the claimant would be greater than the defendant so I refuse the application for an adjournment."

The District Judge then proceeded to try the case in the claimant's absence and found for Lombard. The case largely turned on the documents, but not entirely.

16. Dr Ogunsanya was able to make submissions on the documents and had available a witness statement, which had been prepared, from my understanding, for the purposes of the summary judgment application. In his judgment the District Judge said this:

"Payments were maintained under the agreement from its inception on 13th May 2005 right through to 13th December 2007; the 13th of the month being the due date. However, thereafter the history of the agreement was not so successful. The payment had been being made by direct debit, and on 13th January 2008 the direct debit from the Defendant was referred and not met. The same thing happened on 13th February 2008, but the Defendant paid a cheque for that month's money. There was no payment on 13th March 2008, but on the 1st April 2008 a cheque for one month's money was credited to the account. Again there was no payment in April 2008, and at that point the Claimant company instructed a collection company called Crystal Collections to go and collect the vehicle."

The District Judge said slightly later on:

"The Defendant's evidence is that he tendered cheques on all occasions. There is no evidence in the documentation before me that that is the case.

..."

Then this:

"I find as a fact and I accept the statements of account produced to me by the Claimant ... I am not satisfied on the evidence that other payments were made. I am satisfied that a cheque was tendered on about the 29th April but returned, and that a further cheque was tendered in late July, as I have already referred to, but returned in August.

However, none of that is of very great assistance to the Defendant, it seems to me, because from the beginning of January until the time that the car was repossessed there were always arrears in this case."

The District Judge ordered damages in the sum of £15,266.44 with interest at £6,381.75. Given his finding that "there was no point that the arrears were cleared" it seems to me that the District Judge was entitled to reach the conclusion he did at least on the evidence which was available to him.

17. On 6 August 2013, the Circuit Judge heard an oral application for permission to appeal. Having set out the relevant background, the Circuit Judge said this:

"3. That point was only raised with the trial judge himself on the morning of the trial, when the second application for an adjournment was made to him and was rejected by him. I have not got a transcript of his ruling on the application for an adjournment and so I have to deal with it as best I can on the information available to me. I bear in mind that the test I have to apply is whether there is a real prospect of showing that that decision was wrong. However, the decision of a trial judge on the morning of the hearing as to whether or not to adjourn the case is a classic example of a judicial discretion, indeed a case management discretion, with which an appellate court will not interfere unless the very clearest grounds are shown that the judge wholly erred in the exercise of his discretion. In the present case the judge in considering the application for the adjournment had to bear in mind the extreme lateness with which it was made, and the fact that it could have been made at an earlier date, because Mr Ogunbiyi had always known, certainly in May, that he would be involved in this trial. His solicitors, it appears, were not then aware of that; but if such an application had been made three weeks or two weeks in advance of the trial, so that the costs to the claimant of attending the hearing could have been minimised or reduced, it might very well have received a different consideration.

4. However, in the circumstances that I have described: (a) where the solicitors had had three weeks' notice of the hearing by reason of the letter of 10th May; (b) where there appears to have been a breakdown of communication between themselves and their client; and (c) where the application (on the admittedly substantial ground that the defendant was irrevocably committed elsewhere and could not attend) was made at so late a date that the balance of prejudice was in favour of the claimant rather than the defendant; it appears to me on the basis of the material before me that there was ample material before the District Judge conducting the trial on which a judge could properly have decided to refuse the adjournment.

5. I should also say that of course although the trial, if not adjourned, would have to proceed in the absence of the defendant's oral evidence, the defendant was represented by a solicitor and his evidence could still be heard by the court in the form of his written witness statement and in the form of the documents that were put before the court. ...

7. ...(Of course it was regrettable that the defendant was not there and had he been there it is possible that a different result might have been reached, but that is an attempt to go back on the District Judge's exercise of his discretion to adjourn)..."

18. The submissions of Mr Miah for the claimant may be encapsulated as follows. First, a proper hearing notice was never served by the defendant. The claimant's solicitors acted promptly when they ascertained the trial date. In consequence of what happened, the hearing which took place on 31 May 2013 was inherently unfair. First of all, there is a basic or fundamental human and constitutional right to a fair hearing. The claimant's evidence was likely to be of critical importance, particularly given that an application for summary judgment had earlier been refused. The claimant's non-attendance was not his fault. Mr Miah does not concede that there may have been problems in relation to what the claimant's solicitors did. Those matters should not be visited on the claimant himself.
19. Moreover, when one examines the underlying facts, the importance of oral evidence may be demonstrated. Mr Miah explained to me the position in relation to the closure of the direct debit after 13 December 2007 payment, but he emphasised that it was always his client's position that the subsequent payments were made by cheque. Alternatively cheques were returned consequent upon maladministration.
20. When one examines the District Judge's refusal of the application to adjourn it may be observed, says Mr Miah, that he acted in a somewhat peremptory way, took a somewhat dim view of the claimant's behaviour and did not address a key point, namely the importance of oral evidence. There is no mention of that anywhere in the District Judge's admittedly short decision. Thus it may be said that the District Judge asked himself the wrong question and came to a patently perverse conclusion.
21. Moreover, submits Mr Miah, that error of approach was carried through into what occurred before the Circuit Judge on 3 August 2013. It was incumbent on the Circuit Judge to carry out a more detailed inquiry into what had happened before the District Judge, but the transcript was not available and certain assumptions were made.
22. As to the governing law, Mr Miah relies on two decisions which bear on the review of decisions to adjourn. In Andreou v Lord Chancellor's Department [2002] IRLR 728 the Court of Appeal (Peter Gibson LJ giving the first judgment) analysed the position in relation to adjournments starting at paragraph 35 of the judgment. It is unnecessary for me to set out these paragraphs in this judgment, but there are some indications that the fair trial issue should be given close to pre-eminent status in relation to adjournment applications of this sort. On the other hand, it is clear from Peter Gibson LJ's judgment that deference should be given to the exercise of judicial discretion by the inferior tribunal, particularly in circumstances where it is clear that all relevant matters have been weighed up. It is not for the reviewing board to revisit the merits.
23. Secondly, Mr Miah drew my attention to the case of Terluk v Berezovsky [2010] EWCA Civ 1345. In that case, at paragraphs 18 to 20 of his judgment, Sedley LJ considered the position further. Paragraph 20 is important and I set it out in full:

"20. We would add that the question whether a procedural decision was fair does not involve a premise that in any given forensic situation only one outcome is ever fair. Without reverting to the notion of a broad discretionary highway one can recognise that there may be more than one genuinely fair solution to a difficulty. As Lord Widgery CJ indicated in Bullen, it is where it can say with confidence that the course taken was not fair that an appellate or reviewing court should intervene. Put another way, the question is whether the decision was a fair one, not whether it was 'the' fair one."

24. Mr Miah appeared to rely on that authority in support of the proposition that fairness being so fundamental a constitutional right possessed some sort of objective quality about which it was not possible to have differing views. In fact, Sedley LJ makes plain that that is not the position. The question is whether the decision reached was a fair one, not whether it was the only fair conclusion. As in many other situations, although particular weight must be given to a claimant's Article 6 rights, reasonable tribunals may differ as to the correct outcome.
25. Finally, Mr Miah submitted that the present case was an example of the sort of extreme case which Laws LJ had in mind in R (on the application of Strickson) v Preston County Court [2007] EWCA Civ 1132.
26. I remind myself of the principles governing an application for judicial review of this nature. This court axiomatically is not exercising an appellate jurisdiction, it is in fact exercising a highly attenuated review jurisdiction. The courts have explained, on a number of occasions, the extremely restricted exercise that may be undertaken in cases of this sort, namely cases involving judicial decisions made by County Courts.
27. The leading cases in this area are R (on the application of Mahon) v Taunton County Court [2001] EWHC (Admin) 1078, R~(on the application of Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475, Gregory v Turner [2003] 1 WLR 1149, R~(on the application of Strickson) v Preston County Court [2007] EWCA Civ 1132 and R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin).
28. In my view it is unnecessary to set out all the relevant citations, but I refer to just two of these for present purposes. At paragraph 32 of his judgment in Strickson Laws LJ said this:

"How should such a defect be described in principle? I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both), and a case where, as I would venture to put it, the judicial process itself has been 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 enquiry which it lacks all power to deal with, or fails altogether to enquire 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 only truly exceptional cases -- where there has indeed, as I have put it, been a frustration or corruption of the very judicial process -- are allowed to proceed to judicial review in cases where further appeal rights are barred by section 54(4)."

In Cart Laws LJ sought to clarify what he had said in Strickson. At paragraph 99 of his judgment he said this:

"I hope it is clear from the context that the reference there to a 'substantial denial of the right to a fair hearing' was intended only to denote the case where there has been a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal."

29. Having regard to these authorities, the hurdles surmounting the claimant today are formidable. This is not enough to demonstrate that the Circuit Judge got it "extremely wrong". In order to succeed on this application the claimant has to demonstrate something truly egregious or outrageous as to amount to a complete abrogation of the judicial process in the context of the right to a fair trial. The fact that the District Judge's refusal of the adjournment application led to a trial where, by definition, the claimant could not give evidence is not in itself indicative of an unfair process, or a denial of his fair trial rights. If that were the position it would be impossible in cases such as this for adjournment applications to be refused. That of course is not the law.
30. I examine now the decisions reached by the District Judge and the Circuit Judge recognising, as I do, that the decision under challenge today is that of the Circuit Judge given on 3 August 2013. I have certain reservations about the way the District Judge approached the matter. In my view, he should not have agreed with the submission made by Lombard's counsel that the claimant as a barrister exhibited some discourtesy. That was an unfair observation. Moreover, as I have already indicated, it is certainly highly arguable that the District Judge did not consider the impact on the fairness of the proceedings if the claimant before me could not give oral evidence.
31. Although it is reasonable to infer that the District Judge had read into the case, and there is express reference to the fact that he had read Lombard's counsel's skeleton argument, there is no mention in the adjournment decision to the importance of oral evidence from the claimant's perspective, which would need to be put in the overall balance.
32. The question naturally arises whether the Circuit Judge's decision was erroneous. He approached the matter that he was reviewing the District Judge's decision with a view to ascertaining whether there was an arguable error of approach. The Circuit Judge did not have a transcript of the ruling on the application for an adjournment. Initially I was troubled by that, but I have come to the conclusion that the Circuit Judge was, as he said, entitled to deal with the matter that day, as best he could, on the available information.
33. The Circuit Judge carefully analysed the position and noted that the application to adjourn was made extremely late, that the letter of 10 May had been overlooked, that the position was not properly put to the court on 22 May 2013, and that accordingly there was ample material before the District Judge justifying his conclusion. Moreover, the Circuit Judge noted that the prejudice to the claimant was somewhat mitigated or attenuated by the fact that a witness statement was available and could therefore be relied on, and he had instructed solicitors to advance his case. It is not as if the District Judge was going to hear nothing from the claimant's side.
34. Although the matter is somewhat finely balanced I am able to indicate that if I were approaching this application as if it were a further application for permission to appeal I would probably refuse it. The Circuit Judge has given a good and carefully reasoned decision. The possible errors I have identified in relation to the District Judge's approach cannot be said to have infected that decision.
35. The question then arises, on that basis, whether the present case reaches the extremely high threshold for intervention by this court adumbrated by Laws LJ in the Court of Appeal on two occasions. On the basis of the finding that I have reached that the Circuit Judge's decision is defensible, it must follow that there is no error of law in relation to the judicial exercise of discretion which needs correcting at all.
36. Let me proceed on the basis, given that the matter is quite finely balanced, that the Circuit Judge erred in law. That is the most favourable way the case can be put from the claimant's perspective today. Even on that basis we are an extremely long way away from a situation where this court could say that the Circuit Judge got it "extremely wrong", which, in any event, as Laws LJ has pointed out, would be insufficient for present purposes. It follows that we are even further away from the sort of egregious, indeed outrageous, case contemplated by the Court of Appeal where intervention by the Administrative Court would be required.
37. I appreciate that the claimant no doubt harbours a sense of injustice and that he has not been able to advance the case he wanted to put to the District Judge, which, as the Circuit Judge himself said in the instant case, might have succeeded; one simply does not know. Furthermore, there is a sense of unease in this sort of situation where a professional man is denied a proper hearing.
38. I close my judgment with two observations: first of all, I am bound to apply the law, as enunciated by the Court of Appeal and which is therefore binding in this court, and secondly, the fact that the claimant is a professional man, obviously a man of integrity and a barrister, does rather cut both ways. As I indicated in oral argument, he is a sophisticated litigant. Mr Miah tells me that his practice extends to civil work. Although I have said in terms that he was not responsible for overlooking the letter of 10 May 2013, it is not as if the court should be quite as sympathetic to him as it would be to an altogether untutored or unsophisticated litigant, but adhering to the law, as I must, this application for judicial review is dismissed.
39. MR JUSTICE JAY: I just need to make one correction to the judgment. In relation to the case of Andreou I said Sedley LJ, in fact it is Peter Gibson LJ. Sedley LJ is in the second case of Berezovsky. Mr O'Brien?
40. MR O'BRIEN: I have an application for the defendant's costs. I have a spare copy of the statement of costs. It was served yesterday. Has my Lord received a copy of the statement? I can just hand that up. We have finished rather earlier that the listed time and that does mean that some of the hours that were estimated are slightly longer than they should be. If I can turn my back to work out what it should be. (Instructions taken)
41. MR JUSTICE JAY: You budgeted for a whole day. We can call it 2 hours. Are you going to take off 2½ hours for your fee?
42. MR O'BRIEN: I was going to take 4 hours off my fee, which is on the second page. My fee for the hearing becomes £1,350. That fee for hearing includes preparation time. There is also my solicitor's attendance fee (the last entry on the first page) which currently says "5 hours at £200" and it should be "2 hours at £200".
43. MR JUSTICE JAY: We are taking £1,000 off the total. You do not pay Value Added Tax if you are the Crown. Instead of nearly £11,000 you ask for £10,000?
44. MR O'BRIEN: Yes.
45. MR JUSTICE JAY: Mr Miah, what is your position?
46. MR MIAH: I am grateful to my learned friend for being so sensible in relation to the costs. My only issue is with work done on documents. That seems a bit excessive, we would say.
47. MR JUSTICE JAY: Why so many hours there, Mr O'Brien?
48. MR MIAH: Also there is attendance on others.
49. MR JUSTICE JAY: That may well be the client.
50. MR O'BRIEN: My Lord, I am told it principally relates to the witness statement in which there was a reasonable amount of solicitor involvement, but my instructing solicitor is not entirely aware as to that figure. It may be it is a little too high. I am not sure what my friend has suggested.
51. MR JUSTICE JAY: It is for me to suggest in the end. My approach is that the Treasury Solicitor does not often throw money away in relation to cases, even cases which he probably thinks he is going to win such as this. We live in austere times and care is taken. Whereas in some cases I would take quite a lot off on a sort of rough and ready assessment, having regard to all the circumstances of this case, and in particular the issue as to documents, I am going to call the figure £8,500. Are there any other applications?
52. MR MIAH: No, my Lord.
53. MR JUSTICE JAY: Thank you very much.