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
		11 March 2015

1. MR JUSTICE DAVIS: This is a renewed application for permission to apply for judicial review. The Claimant Judith Willing has appeared before me today in person and has presented her arguments with care and with the assistance of helpful written materials. I am very grateful to her for the careful and measured way in which she has presented her case.
2. The case concerns a top floor maisonette at 4C Pelham Road, Wimbledon. At that address there are three flats or maisonettes in the dwelling, all of them owned by the Claimant. 4C, in 2012, was occupied by a Mr Thomas Day. He occupied 4C under the then remaining part of a 99-year lease. In 2012 Mr Day served a notice on the Claimant under Section 42 of the Leasehold Reform Housing and Urban Development Act of 1993, a process whereby he was entitled to seek an extension of the lease. The extension he sought was one of 99 years and the offer he made was a premium to extend in the sum of £2,250 with a peppercorn rent to follow for the rest of the extended term.
3. Mrs Willing, as she was entitled to do, served a counter-notice under Section 45 of the 1993 Act. She disputed Mr Day's application. This was not in the sense of disputing his right to extend; rather she wished for the terms of the lease to be revised.
4. She has explained to me that for a whole variety of reasons she considers the terms of the lease -- I am paraphrasing what she was saying to me -- to be a disaster area.
5. Because of the notice and counter-notice, in due course the matter was considered by the Leasehold Valuation Tribunal ("the LVT"). There was a hearing before that tribunal and its decision was promulgated on 9 May 2013. I do not think I have the decision itself. It matters not. The details are not of significance. What was of significance was that Mr Day was successful in the sense that the terms of the lease, if not wholly, certainly largely, remained unaltered. The premium was now £29,500.
6. Mrs Willing applied for permission to appeal that decision. The application was first considered by the Leasehold Valuation Tribunal itself. Mrs Willing tells me that it was considered by the chairman of the tribunal which had considered her case. That appeared to her to be unusual. In many tribunal jurisdictions that would be unusual where there are many tribunal judges. As a matter of convenience a different judge will consider the issue of permission. It is not unusual as a matter of process. In many courts the application for permission to appeal inevitably will be made to the judge who has made the initial decision. In any event, the application was refused.
7. Mrs Willing applied to the Upper Tribunal (Lands Chamber) for permission to appeal to the Upper Tribunal and that application in due course was refused. The date of that was 19 July 2013, a potentially significant date. The only route of appeal then open to Mrs Willing was an application for permission to apply for judicial review. An application for permission was made. For reasons that Mrs Willing has explained to me, the application in its proper form was out of time, but it was considered by Mrs Justice Laing and she gave her decision on 22 October 2013. The reasons were in these terms:

"The application is out of time and the Claimant has failed to establish good reason for the extension of time. The decision of the Upper Tribunal does not disclose any arguable error of law, nor does the decision of the Leasehold Valuation Tribunal disclose any arguable error of law. The second appeal test to be applied in considering whether to grant permission for a judicial review of a decision of the Upper Tribunal has not been met as the claim does not raise an important point of principle or practice, nor is there some other compelling reason to hear it."

Because the application was what is known in the vernacular as a Cart case, the Civil Procedure Rules Part 54.7A applied and therefore Mrs Justice Laing's decision to refuse permission was final and no further reconsideration of it could be considered.

8. On 1 November 2013 Mr Day issued a claim in the Kingston-upon-Thames County Court. He issued his claim on a Part 8 claim form. Under the details of claim he recited the history of the matter, much as I have recited it, though he did in fact -- and I suspect due to a typographical error -- refer to the date of the Upper Tribunal's refusal of permission to appeal as being 9 July, when of course it was 19 July.
9. In any event, having rehearsed the history, paragraph 8 of the Details of Claim read as follows:

"No new lease has been entered into in pursuance of the said notice and the Claimant applies for the following orders in respect of the performance or discharge of the obligations arising out of the said notice:

(i) the defendant's execute a lease of the property in the form attached hereto in accordance with the determination with the LVT;

(ii)the defendant's pay the costs of this application to be summarily assessed and to be deducted from the premium due to defendants."

10. Mrs Willing defended the claim. I do not think I have seen her Details of Defence but I fully understand what it was. She said Mr Day's right to obtain relief from the County Court only accrued when two months had expired from the date when the decision of the LVT became final. On her case that date was 22 October 2013. That was the date on which Mrs Justice Laing had refused permission to apply for judicial review. Therefore, said Mrs Willing, Mr Day's claim was premature, and at that stage at least, if matters remained unaltered he would not be able to obtain the relief he sought.
11. The proceedings for some reason were transferred to the Canterbury County Court and the matter came before District Judge Jackson on this preliminary point of jurisdiction. Judge Jackson heard the case on 30 May 2014. Nothing more had been done by Mr Day in the meantime in terms of any fresh claim or fresh application. Therefore, if Mrs Willing's assertion was upheld by the District Judge the claim would be dismissed and the whole process would have to start again. The practical consequence would be, as was identified by the District Judge, when he said:

"If this case is thrown out the entire situation will be re-evaluated for further negotiations and any meaningful lease to be included."

12. Mrs Willing before me described District Judge Jackson as "a nice person". She told me that she felt awful criticising his conduct in the case and the decision he made. She should rest assured that she should not feel awful. Doubtless, with very great respect to him, District Judge Jackson's decisions are not infrequently the subject of appeal and doubtless from time to time those appeals are successful. He was simply exercising his judicial function and doing his best. He would not feel anything adverse to Mrs Willing that she was criticising his decision.
13. In any event, District Judge Jackson ruled that the County Court did have jurisdiction. His primary ruling was that the decision of the LVT was final on 19 July 2013. He considered specifically Section 101 of the 1993 Act, and at paragraph 28 of his judgment, as transcribed, he cited the relevant part of the section:

"For the purposes of this part an order or a decision of a Leasehold Valuation Tribunal is to be treated as becoming final... if appealed against and not set aside in consequence at the time when the appeal and any further appeal is disposed of."

14. His primary finding was that the application to apply for permission for judicial review was not an appeal within the meaning of Section 101. Therefore, Mr Day's application was made at the appropriate time. The district judge went on to find that even if he was wrong about that, the application was still valid on other grounds. He also considered further and separate issues in relation to the way in which the proceedings had been brought. It was argued by Mrs Willing that in the claim there was a failure to identify which provision of the 1993 Act was relevant to the proceedings and the claim. She argued, therefore, that the claim did not set out the legal basis for the remedy sought.
15. The district judge considered that argument. He found, for the reasons he gave, and I do not need to rehearse them, that that failure did not vitiate the proceedings. It was also argued before the District Judge that there was a statement of truth appended to the Claim. The claim made no reference to the application for judicial review. Therefore, the claim itself was untrue and that, again, should vitiate the process. The District Judge concluded that neither that failure, nor, had he had the chance to do so, the typographical error, had the effect argued by Mrs Willing. That was his decision.
16. The decision was transcribed. It runs to 57 paragraphs. It is clear from the transcript, at least the early stages of the transcript, that the hearing was conducted with some pressure of time but the length and detail of the judgment given demonstrates the apparent care which the District Judge gave to the proceedings. Whether he got it right or not is, of course, another matter.
17. The order of the District Judge was sealed on 5 June. It required the Claimant to execute a new lease in the terms ordered by the LVT. Costs were awarded and the deposit paid was ordered to be deducted from the agreed premium. Those are both matters which Mrs Willing now criticizes.
18. Mrs Willing applied for permission to appeal. That had to be considered by a circuit judge. On 4 September 2014 his Honour Judge Murdoch QC heard the application. Mrs Willing was present. She told me today that there was some pressure of time but she was able to explain the 1993 Act and all its intricacies in great detail. Judge Murdoch refused permission.
19. The Claimant then applied to the Court of Appeal (Civil Division) for permission to appeal. That court more than once explained that it had no jurisdiction. It did so inter alia in a letter dated 16 October 2014. It was in fact the second letter sent to Mrs Willing but it encapsulates the position when it states this:

"A second appeal only lies to the Court of Appeal where permission to appeal has been granted by the first appeal court, in this case the circuit judge, and the substantive appeal has been determined by that court. In this case the circuit judge refused permission to appeal, so there was no substantive first appeal and no second appeal therefore lies to the Court of Appeal."

The basis for all of that is Section 54 of the Access to Justice Act 1999.

20. Mrs Willing then applied to this court for permission to apply for judicial review of the decision both of District Judge Jackson and of his Honour Judge Murdoch. The application was considered on paper by Mr Justice Mostyn and he gave the decision on 28 January this year. I shall set out his reasons for refusing permission in full because they were very full reasons.

"1. In this case District Judge Jackson sitting in the Canterbury County Court on 5 June 2014 made an order granting Mr Day a new lease. He refused permission to appeal to the Claimant. The Claimant sought permission to appeal from the Circuit Judge and on 22 August 2014 Judge Murdoch Q.C. refused permission. No further appeal is available from that decision.

2. The decision of the Court of Appeal in Wandsworth County Court [2003] 1 WLR 475 establishes that a decision of the county court could only be subject to judicial review in two extreme and exceptional cases, namely where it was sought on the ground of jurisdictional error in the narrow pre-Anisminic sense or procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair hearing. (see (R) Cart v Upper Tribunal [2011] UKSC 28 ).

The decision in Cart which created the second appeal test of judicial review of the decisions of specialist tribunals does not alter this stringent test as regards the county court (see paragraphs 41 and 42 of Cart.) In paragraph 34 Lady Hale speaks of judicial review against county court decisions only being available in very rare cases.

3. Therefore, I approach this application with that stringent test confined only to the two scenarios mentioned at the forefront of my mind.

4. The Claimant does not attempt to explain why either limb of the test is met. It is plain to me that the District Judge acted with full jurisdiction and that the Claimant was afforded a fair hearing. There was no procedural irregularity.

5. Accordingly, this application can be seen to be meritless and must be dismissed."

21. When Mr Justice Mostyn spoke of the Claimant not attempting to explain why either limb of the test is met, he was referring to the material then available to him. The material placed before him by Mrs Willing was in general terms a somewhat discursive explanation of what had gone before. Mrs Willing before me, doubtless with the assistance of the decision of Mr Justice Mostyn drawing her attention to it, has provided me with a checklist by which she asserts that there is both procedural irregularity and jurisdictional error in the relevant sense. I set out briefly the way in which she has put it orally to me today, though her oral submissions, in a sense, were merely a rehearsal, albeit a helpful rehearsal, of her checklist. I set these out in the order in which she dealt with them orally.
22. First, she said she did not have a fair hearing. She did not understand the process. She did not say a great deal of what she had to say and as she put it, she only half put her case.
23. Second, she said that the District Judge's ruling on costs was simply wrong. He should not have deducted the deposit that had been paid from the premium, and the costs of the proceedings, she said, were simply not recoverable by reference to Section 91, Subsection 8 of the 1993 Act. She said that the case almost arbitrarily had been placed by the District Judge in the course of the hearing in the multi-track, when in reality it was a small claim. The procedure that was adopted by the Claimant in the county court proceedings, that is Mr Day, was an inappropriate procedure. He should not have made a Part 8 claim. He should have engaged in what is effectively a quasi-administrative process by issuing a form N3T322B. That form should have been submitted with the LVT decision attached. It would have been a process that did not involve any court hearing. It would have been dealt with, presumably, by a district judge as part of his box work. She argued that there was no authority in the county court, no jurisdiction in the county court to do what in due course was done, namely to execute the lease. Section 39 of the Senior Courts Act 1981 gives such power to the High Court. It does not give power to the county court. Therefore, the county court does not have the power. The District Judge was simply wrong to reach the view he did as to what an appeal was for the purposes of Section 101 of the 1993 Act. It must include an application for permission to apply for judicial review.
24. Those were the various matters she argued in respect of the hearing before the District Judge. In respect of Judge Murdoch's refusal to grant permission she said that Judge Murdoch was acting under pressure of time, though she did concede that she had full opportunity to explain the position to him. What he did in large measure was to adopt the findings of Judge Jackson, and therefore, all the errors she has identified in District Judge Jackson's decision became the errors of his Honour Judge Murdoch. By that route, Mrs Willing argues that she is entitled to apply for permission for judicial review.
25. When Mr Justice Mostyn referred to the approach of the House of Lords, in particular Baroness Hale in Cart, he was citing what Baroness Hale had to say entirely accurately. In particular, at paragraphs 42 and 43 there was distinction drawn in practical terms between the county court and the tribunal system. In paragraph 42 lady Hale said this:

"This approach" -- that is the approach to judicial review of the county court work -- "accepts that a certain level of error is acceptable in a legal system which has so many demands upon its limited resources. Some might question whether it does provide sufficient protection against mistakes of law. In ordinary courts, unlike the new tribunal system, there may be an appeal on a point of fact as well as law. It makes sense to limit appeals to those with a real prospect of success. Judicial review is not such an appeal. The district judge and appeal judge may both have gone wrong in law. They may work so closely and regularly together that the latter is unlikely to detect the possibility of error in the former, but at least in the county courts such errors are in due course likely to be detected elsewhere and put right in the future. The county courts are applying the ordinary law of the land which is available in courts throughout the country, often in the High Court as well as the county court."

26. Lady Hale identified the much higher risk of problems arising in the specialist tribunal jurisdiction. What Cart certainly did not do was to change the very settled jurisprudence referred to by Mr Justice Mostyn as to judicial review of the county court. The decision in the case of Strickson v Preston County Court [2011] EWCA (Civ) 1132 is a graphic illustration of the principles.
27. In that case application was made for permission to apply for judicial review. The single judge Mr Justice Goldring, as he then was, considered the detail of the decision of the county court and came to the clear and unequivocal conclusion that in that case the circuit judge should have granted permission to appeal against the decision of the district judge, and had permission been granted, the appeal undoubtedly should have succeeded.
28. I do not need to identify the detail of the case but it was, according to the judge, "a clear case where the county court had simply gone wrong." Mr Justice Goldring, as he then was, did not grant permission, applying the test as already outlined. The Court of Appeal upheld Goldring J, as he then was. Lord Justice Laws said this at paragraph 32:

"I think a distinction may be drawn between a case where a 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 on inquiry, which it lacks all power to deal with or fails altogether to adjudicate on 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...

The courts will have to be vigilant to see that only truly exceptional cases, where there has indeed, as I 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)."

The reference to Section 54 is a reference to the Access to Justice Act 1999, to which I have already referred.

29. What happens when you apply that test to this case? It may be -- and I am not going to pass judgment on it because it will not be very helpful -- it may be that District Judge Jackson and in his turn Judge Murdoch went wrong on the law. At the risk of immediately breaking the undertaking I have just given, I have to say that my preliminary view is that they did not, but I proceed on the assumption that they did. What they did not do was to embark on an inquiry which they lacked all power to deal with. They did not fail to adjudicate on something which they undoubtedly had to adjudicate upon. A claim was placed before them, arguments against that claim were addressed, they considered those arguments, particularly in the case of District Judge Jackson, in very considerable detail and they dealt with them. None of that led to a substantial denial of the right to a fair hearing. Even assuming for a moment that Mrs Willing was unable, for whatever reason, to put her case before District Judge Jackson, that did not apply in the case of the application before his Honour Judge Murdoch as Mrs Willing very sensibly and reasonably concedes to me.
30. This is not, I am afraid to say, a truly exceptional case. There has not been a frustration or corruption of the very judicial process. There plainly has been an outcome in respect of which Mrs Willing is extraordinarily dissatisfied. She may or may not be right about errors that the county court judges have made, but as is made perfectly plain by what Lord Justice Laws said in Strickson and said in line with both previous authority and as supported in Cart, the ability of this court to interfere with decisions of the county court is extraordinarily limited. I regret to say, those limits do not extend to me giving permission judicially to review the decision of the court in this case, and therefore this renewed application for judicial review is dismissed.

Thank you very much.