England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/06/2015

Mr Justice Nicol :

1. This is the judgment of the Court to which we have both contributed.
2. On 13^th October 2014 at the County Court sitting in Manchester, Mr Recorder Osborne gave an ex tempore judgment at the end of a four day trial dismissing a claim for personal injury and consequential losses on the basis that the underlying motor accident was staged and the claims fraudulent. In the course of his ex tempore judgment he found that the solicitors for the claimant driver in that action (MRH Solicitors Ltd – 'MRH') were party to fraud, as were Apex Hire UK Limited ('Apex') and Pennington Legal Limited ('Pennington') who had provided hire cars to him. A passenger was separately represented. Neither the solicitors nor the hire companies were party to the proceedings or had been given any warning that the findings might be made. The Recorder later approved a transcript of the judgment which included those findings. By these proceedings for judicial review the solicitors and hire companies seek to undo what they submit was a breach of natural justice which has resulted in their integrity being impugned unfairly. Permission was granted on the papers and later interim relief was granted by Supperstone J to prevent the circulation of the approved judgment. The Claimants seek to quash parts of the approved judgment.
3. The trial began on 8^th October 2014. The proceedings arose out of a road traffic accident which had occurred on 26^th January 2012. The Claimants were Mohammed Yousaf and Junaid Ahmed. They had been travelling in Mr Yousaf's car and had been approaching a roundabout when, it was said, the car in front braked unexpectedly. Mr Yousaf braked in time but the car immediately behind his, and which was being driven by Lara Mason, did not. Ms Mason collided with Mr Yousaf's car. Behind Ms Mason was a taxi being driven by Mohammed Hanif. Mr Hanif was also taken unawares. He collided with Ms Mason's car in front of him which (again so it was said) shunted her car into a second collision with Mr Yousaf's. In the County Court proceedings Ms Mason was the 1^st Defendant and Mr Hanif the 2^nd Defendant. MRH were the solicitors for Mr Yousaf (Mr Ahmed was separately represented). Andrew Lawson was counsel for Mr Yousaf. The trial was heard by Mr Recorder Osborne.
4. On the first day of the trial, Mr Lawson, having taken his client's instructions, substantially amended the amounts which Mr Yousaf sought to recover in special damages. A claim for £898 for some 11 sessions with a physiotherapist was abandoned because no physiotherapy had been provided, despite the pleadings being supported by a statement of truth. The cost of hiring a substitute car from Pennington and Apex had been claimed at £16,308 but were reduced to £5,400. A claim for storage and recovery of Mr Yousaf's damaged car had been pleaded at £11,277 but was reduced to £3,300. The car being driven by Mr Yousaf was valued at £550.
5. Ms Mason (or her insurers) instructed Keoghs to defend the claims. Her defence was that both Mr Yousaf and Mr Ahmed were fraudulent. The unidentified driver of the first car was a stooge who, in concert with Mr Yousaf and Mr Ahmed had staged this incident so as to create a pretext for the collision and make a fraudulent claim against the insurers. In her defence Keoghs referred to 11 other road traffic collisions which occurred between 26^th January 2012 and 17^th January 2013 which they said had similar modus operandi and other common features. In all of them the claimant vehicles had braked for no good reason leading to the collisions which were the causes of the damage. In 10 of the 11 cases the claimant's vehicle had braked because a stooge vehicle in front had braked. After the collision the claimants had all used the services of the same recovery company. The claimants' vehicles were inspected in each case by the same company. Some or all of the claimants in each of the 11 cases were represented by MRH. In each case the claimant drivers were provided with a replacement car on credit hire by Apex or Pennington. It was alleged that all of these collisions had been fraudulently induced to make false insurance claims. The pleading said in terms that "For the avoidance of doubt, no allegations are made against any of the above named companies. Rather it is the use of their services by the various claimants (who have all experienced remarkably similar accident circumstances) that links the 12 collisions." Ian Toft of Keoghs provided a witness statement giving evidence about these other cases.
6. On 8^th October 2014 the Recorder refused an application to exclude Mr Toft's evidence. He ruled that it was potentially admissible on the similar fact principle although whether that was indeed the case would have to be examined at the end of the trial.
7. Messrs Yousaf and Ahmed gave oral evidence, as did the two defendants and a passenger in Ms Mason's car. Mr Toft also gave evidence. He confirmed in cross examination that fraud against MRH, Apex or Pennington was not being alleged.
8. On 13^th October 2014 the Recorder gave an oral judgment to which we have referred.
9. The passages in the judgment to which MRH, Apex and Pennington take exception are these. He said at [6],

"In my view, MRH Solicitors are beyond incompetent in this; they are elbows deep in a fraudulent claim. Their intention is to profit their referring clients, Apex and Pennington, the credit hirers and storage companies, the only ones who are going to gain out of the storage and credit hire of these two fairly old ("F" registered) vehicles to this claimant."

At the end of his judgment he added at [23],

"This claim is fraudulent. In my view it is run, primarily, for the advantage of the intermediaries and the car hire and storage company supported by an utterly unarguable schedule which denotes, in my view, more that incompetence but actual dishonesty on the part of MRH Solicitors."

10. They also object to what was said at [7] in connection with something found in Mr Yousaf's witness statement suggesting that he was aware he was liable for the hire charges irrespective of whether they were recovered, but of which he said he was unaware when he gave his oral evidence,

"A sentence patently planted in his statement by MRH Solicitors to explain that it is meant to be a serious credit hire contract, but which, he, again, denied having knowledge about … Patently again this is planted in this man's witness statement in the lawyers' language …"

11. On behalf of MRH, Mr Knowles QC argues that the Recorder behaved unfairly towards the solicitors. He accepted that the Recorder would have been entitled (if he considered the evidence warranted it) to voice concerns or suspicions as to their behaviour, but, since he had not heard from them (and they had not had an opportunity to be heard), he could not properly express final conclusions that they had behaved fraudulently. Secondly, fraud by MRH had not been pleaded by the Defendants. On the contrary, it had been expressly disavowed in Ms Mason's defence. When Mr Toft, her solicitor gave evidence, he again confirmed that it was no part of her case that MRH were party to any fraud. That position was repeated in the closing speech of counsel for Ms Mason. Since fraud by MRH was not pleaded, Mr Knowles submitted, the Recorder was simply not entitled to make such a finding against them. His role was to adjudicate on the issues raised by the pleadings, not to embark on an inquisitorial enterprise of his own.
12. Ms Anderson QC on behalf of Apex and Pennington adopted Mr Knowles' submissions. She argued as well that there was simply no evidence on which the Recorder could find her clients had been fraudulent. Indeed, she argued, it was difficult to discern on precisely what basis the Recorder had reached his conclusion that her clients had been fraudulent.
13. The Defendant County Court acknowledged service but, as is customary when a claim for judicial review is brought against a court, HMCTS on its behalf indicated that it did not intend to make any submissions. Recorder Osborne did nonetheless provide a quite lengthy "Note from the Trial Judge".
14. With the exception of Lara Mason, none of the Interested Parties took part in the present proceedings.
15. Mr Fisher, on Ms Mason's behalf, explained that she was neutral as to the substance of the complaints by MRH and Apex and Pennington, but made limited submissions as to the nature of any relief.

Jurisdiction

16. The origin of judicial review is the common law power of the Court of King's Bench to issue prerogative writs of certiorari, prohibition and mandamus to inferior courts and tribunals. The High Court has succeeded to King's Bench and the old prerogative writs have been replaced by the powers available on an application for judicial review in the Senior Courts Act 1981 s.31. The county court is one of the inferior courts which is amenable to judicial review (see for instance R (Sivasubramanian) v Wandsworth County Court [2003] 1 WLR 475 CA at [33] and following).
17. However, as the Court of Appeal also said in Sivasubramanian at [14],

"While the jurisdiction judicially to review decisions of a county court has not been in doubt, it has rarely been exercised. In recent times this is no doubt because a more satisfactory alternative remedy has existed in the form of an appeal to the Court of Appeal."

18. Nowadays the route of appeal from some County Court decisions is to the High Court rather than the Court of Appeal – see Access to Justice Act 1999 (Destination of Appeals) Order 2000 SI 2000 No. 1071, but the principle is the same. For most purposes appeal is the more convenient remedy and, where such a remedy exists, the Court will usually decline to exercise the power of judicial review.
19. MRH and Apex/Pennington submit that, in the present case, they had no route of appeal since none of them were parties to the County Court litigation which had been brought by Mohammed Yousaf and Junaid Ahmed against Lara Mason and Mohammed Hanif.
20. While that is plainly true, it is not the end of the matter since, MRH, Apex and /or Pennington could have applied to be joined as parties. By CPR r.19.2,

"The Court may order a person to be added as a new party if – (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party to that the court can resolve that issue."

The Court's permission is required to add a new party – see CPR r.19.4(1), but the person who wishes to be added can make the application – ibid r.19.4(2). They could then have made an application asking the Recorder to excise the offending passages from the approved judgment. Had he refused to allow them to be joined, or declined to accept that he had power to amend the transcript, alternatively had he declined to do so having accepted he had power, an appealable decision would have been generated. We are aware of the judgment of the Court of Appeal in R v Lord Saville of Newdigate Ex parte B (30^th March 1999, unreported) in which jurisdiction was accepted by the Court to entertain a challenge to a finding of the Divisional Court without the appellant seeking to reverse the decision itself. We heard no argument upon whether that case might provide a basis for an appeal or whether any other residual basis for inviting the Court of Appeal to intervene might be found. See, for example, the discussion in Patel v Mussa [2015] EWCA Civ 434. We say no more about them. However, Mr Knowles indicated that MRH at least considered whether to seek leave to be joined as a party in the County Court proceedings to engage with the Recorder on the issue.

21. We need to say a little more about what happened in the present case. When Recorder Osborne gave his oral ex tempore judgment on 13^th October 2014 Andrew Lawson, counsel for Mr Yousaf, was present in court and took a note. A paralegal from MRH was also present. No issue was raised by either of them at the time and it does not appear that they appreciated the full import of what had been said by the Recorder. Apex and Pennington were not present in court, but Apex had provided evidence in the course of the proceedings. Mr Mohamed Yusuf Patel who is a director and shareholder of MRH and himself a solicitor asked on the following day (14^th October) for a transcript of the judgment. On 21^st October 2014 he was told that Keoghs (i.e. Ms Mason's solicitors) had already requested a transcript. On 31^st October Keoghs issued an application seeking an order that Pennington and Apex should be joined as parties to the proceedings for the purposes of costs and that an order should be made against them under s.51(1) of the Senior Courts Act 1981 and that MRH should show cause as to why they should not be required to pay wasted costs pursuant to the Senior Courts Act 1981 s.51(6). The application was supported by a witness statement from Mr Toft who alluded to some of the remarks which the Recorder had made in his judgment. Mr Patel received the application on 4^th November 2014 and he says in his witness statement that it was only then that he realised the seriousness of what the Recorder had had to say about his firm. He caused inquiries to be made of the transcribers to see what stage their work had reached. He was told on 7^th November that a transcript had been prepared and sent to the Recorder for his approval. MRH that day also instructed Mishcon de Reya ('Mishcons') to act on their behalf.
22. The next working day (10^th November 2014) Mishcons wrote to Recorder Osborne and asked him not to finalise the transcript until they had had an opportunity to make submissions as to why he should amend the transcript to remove the finding that MRH had been fraudulent. No formal response was received by Mishcons, although they were told by court staff on Wednesday 12^th November that the Recorder had received the letter and had no immediate response to it. Mishcons were also told that there was to be a hearing on 18^th November on Ms. Mason's application to join parties to the proceedings. They were further told that the Recorder had not at that stage (Wednesday 12^th November) approved the transcript, although it seems that on the following day (Thursday 13^th November 2014) the Recorder did approve the transcript of his oral judgment and returned it to the transcribers on Friday 14^th November.
23. Recorder Osborne is also a District Judge sitting at Tameside County Court. The hearing on 18^th November took place there, although he still conducted the hearing in his capacity as a Recorder. Mishcons instructed Russell Dickinson to represent MRH. The Recorder confirmed that he had approved the transcript on the previous Thursday. He was disinclined to alter the transcript although he did make an order that the transcript was not to be further disseminated. The Recorder did not give a separate judgment on the issue but, from exchanges during submissions, it seems he thought that he did not have the power to do so since the judgment had already been given orally and could have been heard by anyone who was in court. The Recorder said that he was not willing to change the judgment simply on the basis of submissions. Although the possibility was canvassed of MRH returning with a formal application before the Recorder for changes to the judgment, that did not in the event take place.
24. In the unlikely event that something similar to this should happen in the future, in our view the right course would be for the third party who believes they have been unfairly criticised in a judgment to apply to be joined as a party. We emphasise that we are not saying that a third party who is criticised will necessarily be entitled to be joined as a party. There are many cases heard in the civil courts (and also family and criminal courts) where the conduct of an absent person falls to be considered. For example, in a conspiracy case not all the alleged conspirators may be before the court as parties or witnesses. In complex commercial frauds it may well be part of the case that an absent person or institution was party to dishonest conduct somewhere in the chain. Everything will depend on the facts of the individual case. The facts of this case are unusual. The solicitors stigmatised as party to fraud were in court acting for one of the parties. Apex and Pennington were, as the Recorder robustly observed, the real substantial beneficiaries of the litigation. Apex had provided evidence in the form of a statement from a witness who in the event was unwell and did not attend court. His statement was read. In this case it was a procedural step which was open to consideration.
25. So far as the Recorder thought that he had no power to change a transcript which accurately recorded what he had said in his ex tempore judgment we disagree. There may be a confusion here. The trial and judgment of this road traffic claim all took place in open court. The public were free to attend and such hearings are to be treated as public whether or not anyone was present other than those immediately involved with the case. Subject to immaterial statutory exceptions or contrary orders of the Court, what takes place in open court can be freely reported. In a sense, therefore, the Recorder was right that this genie could not be put back in the bottle.
26. However, it is common practice for a Judge who gives an oral ex tempore judgment to refine it when asked to approve a transcript. Ordinarily, this is limited to tidying up the language, but in principle we see no reason why it may not include more significant changes. In Day v Harris [2014] Ch 211 CA, for instance a judge added a passage to the transcript which had not been included in his oral judgment. The Court of Appeal described this as "unfortunate" because the addition was made long after the trial and it added a finding of fact on a controversial issue. The Court did not suggest that the Judge was disempowered from changing his oral judgment and there would have been no comparable objection to an alteration in the present case. If, as in this case, the order of the Court consequent on the judgment has been sealed, the changes cannot usually alter that order. Otherwise, though, it is a matter for the Judge's discretion as to what changes are appropriate.
27. This is not to say that the Judge can behave arbitrarily. Like any discretion, it must be exercised judicially. However, if MRH, Apex and Pennington had become parties to the County Court action and if the Recorder had persisted in his refusal to change the judgment, they could, in principle at least, have appealed that decision.
28. It is axiomatic that appeals are brought against orders, not the reasons for the orders or (in this sense) judgments – see e.g. Lake v Lake [1955] P 336 CA, but in the scenario which we are considering, MRH/Apex/Pennington would have had an order against which they could appeal, namely the Recorder's refusal to vary the terms of the written transcript of the judgment. Once again, we emphasise that we are not saying that any third party who is unhappy about criticism of them in a judgment can expect to have the judgment changed either by going back to the Judge or by appealing. It will all depend on the circumstances and it is likely to be rare that the Judge's discretionary refusal will be amenable to appeal. In principle though, if MRH/Apex/Pennington had become parties, had applied for the judgment to be altered and had been refused, they could have advanced the same objections by way of an appeal which they now make by judicial review.
29. This course would have a further advantage. It would not be dependent on such a hypothetical future scenario taking place in the County Court. Although the destination of any appeal might be different, it is a procedure which could be followed if complaint was made about an ex tempore High Court judgment (unlike an application for judicial review which cannot be brought in relation to a High Court judgment). It would be wrong to assume that High Court Judges are immune from such errors as are alleged to have occurred here, see for instance Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569 CA.
30. We have considered whether this alternative remedy should mean that we decline in our discretion to entertain these applications for judicial review. We have decided that that would not be right. A finding of fraud (if that is what it was) is particularly serious. The error alleged by the present Claimants of unfair treatment is particularly egregious. MRH acted swiftly once they became aware of the parts of the oral judgment which had been critical of them. They tried, without success, to persuade the Recorder to change his judgment. While we have identified a potential procedural route by which they might have had access to an appellate court, we do not think it would be right to shut the judicial review door because the Claimants in these proceedings did not follow it.
31. Accordingly, we accept that we have jurisdiction and we agree that we should not refuse to hear the claims because of a (theoretical) alternative remedy.

MRH's claim

32. There can be no doubt that the Recorder was finding that MRH had been fraudulent and dishonest. His language was graphic ("elbows deep in fraud") and explicit ("denotes more, in my view than incompetence but actual dishonesty on the part of MRH Solicitors.")
33. The Recorder considered that he had good reasons for these views. We have already referred to the abandonment of the claim for physiotherapy treatment and the very substantial reduction in the claim for storage (of Mr Yousaf's damaged car) and for hire of a substitute car. When Mr Yousaf gave evidence he claimed to know nothing about paying for physiotherapy and said he had only ever been to the hospital. Quite how a claim for £898 for an initial assessment and 10 physiotherapy sessions by a company called Premier Motion in Preston had come to be included in the Schedule of Loss was a mystery. As for the car hire charges, Mr Yousaf's evidence was that he thought he had been provided with a courtesy car. He seemed unaware that he had accumulated liability to the car hire companies, Apex and Pennington, of over £16,000. He had no knowledge of the reduction in the claim for these charges by £11,000. This was despite passages in his witness statement which said that he had been told he would be liable for hire charges and had been chased for them by post and by phone in passages which, as we have noted, the Recorder said had been "patently planted in his statement by MRH Solicitors to explain that it is meant to be a serious credit hire contract, but which he, again, denied having known anything about." His wrecked £550 car had been stored after the collision at a cost of some £11,000. The claim for recovery of this charge was reduced by £8,000 on the morning of the first day of the trial. The original version of Mr Yousaf's Schedule of Loss had been signed by him, but the final version was signed with a statement of truth by MRH on his behalf. Mr Junaid Patel, a fleet manager of the car hire company, Apex, had provided the witness statement. He noted that MRH acted for them. They were also the only solicitors who were on their company's panel. According to Mr Junaid Patel, MRH could also be involved in suing those who did not pay their credit hire bills.
34. We well understand how the Recorder's suspicions were aroused. However, in the absence of good reason a Judge ought to be extremely cautious before making conclusive findings of fraud unless the person concerned has at least had the opportunity to give evidence to rebut the allegations. This is a matter of elementary fairness. In Vogon International Ltd v the Serious Fraud Office [2004] EWCA Civ 104 at [29] May LJ (with whom Lord Phillips MR and Jonathan Parker LJ agreed) said,

"It is, I regret to say, elementary common fairness that neither parties to the litigation, their counsel nor judges should make serious imputations or findings in any litigation when the person concerned against whom such imputations or findings are made have not been given a proper opportunity of dealing with the imputations and defending themselves."

35. This is not only required because of fairness to the party affected but also to avoid the Court falling into error – see for instance Co-operative Group (CWS) Ltd v International Computers [2003] EWCA Civ 1955 at [ 38]. As Megarry J memorably said in John v Rees [1970] CH 345, 402,

"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were answered; of inexplicable conduct , which was fully explained…Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events".

36. This was not a case where it could be said that MRH had had an opportunity to give evidence to rebut the allegation of fraud or dishonesty, that they had failed to take it and some kind of adverse inference could therefore be drawn from their silence. Mr Knowles drew attention to the fact that there was no pleading that MRH had been dishonest or fraudulent. On the contrary in the passage which we have quoted from Ms Mason's Defence, such an allegation was expressly disavowed. Mr Toft repeated that position when he gave evidence. In closing submissions, counsel for Ms Mason (who would, of course, have been professionally instructed by Mr Toft) again repeated her position: fraud by the solicitors, the car hire or storage companies was not alleged. We agree that this assists Mr Knowles' case on fairness. If a case of fraud had been alleged against MRH, they would have had to consider whether they should continue to act for Mr Yousaf. They may also have wished to apply to be joined as a Defendant to the action so that they could defend themselves (although even in those circumstances, the precise effect of legal professional privilege might have to be considered). Since fraud by MRH had not been pleaded, their omission to take any of these steps was of no significance.
37. Mr Knowles also drew attention to the principle of pleading, namely, that allegations of fraud or dishonesty must be made clearly and with proper particulars. He argued that, absent a pleading of dishonesty by MRH, the Recorder was simply disentitled to investigate the matter at all. So far as this was an argument independent of fairness, we have some doubts as to its merit. After all, the purpose of the rules of pleading is so that the parties know the issues on which they must adduce evidence. It is the parties to the litigation who may have a legitimate grievance if the Court travels beyond the pleadings in making its orders or in reaching its findings of fact. In this case that would be Mr Yousaf or Mr Ahmed, but neither of them has appealed against the decision of the Recorder, perhaps because they considered that, even setting aside what the Recorder had to say about MRH, his dismissal of their claims was unassailable.
38. Mr Knowles accepted that the Recorder would have been entitled (if he thought the evidence called for it) to voice his suspicions or concerns as to the conduct of MRH, but noting that he had not heard anyone from MRH give evidence. Any judge would be concerned if evidence heard in a trial cast real doubt on the integrity of solicitors as officers of the court. This may or may not have led the defendants in the County Court to seek a wasted costs order against MRH. What Mr Knowles submitted he should not have done in fairness to MRH was to make positive and unqualified findings that the solicitors had been fraudulent and dishonest.
39. We agree.

MRH: remedy

40. Mr Knowles seeks an order to excise or quash the parts of the Recorder's judgment which alleged that MRH had been fraudulent or dishonest. He and Ms Anderson seek the excision of those parts of paras [6], [7] and [23] which we have quoted.
41. In Secretary of State for trade and Industry v Roger (above) the first instance judge (Harman J.) had acceded to an application for the disqualification of a director. He gave an ex tempore judgment. There was no reference to the director having been dishonest in what the Judge said. However, three months later when the director received the approved transcript, he found that the Judge had added the words, "He clearly acted for his own benefit and to the harm of the companies of which he was a director. That was dishonest."
42. Sir Richard Scott V-C said at p.1577,

"In my opinion, what has happened in the present case cannot lead to or be remedied by any use of the slip rule. Harman J's addition to his judgment as delivered of the sentence, 'That was dishonest', was not done in error, or by oversight or inadvertence. It was a deliberate and intended addition. A judge can be asked to correct under the slip rule a particular sentence in a judgment or a particular part of an order. But if, from the response to such a request or otherwise, it appears that the sentence was deliberate and intended, that is the end of any use which can be made of the slip rule. Nor, in my judgment can the Court of Appeal apply the slip rule in a manner contrary to the intentions of the first instance judge. It is for the judge to decide what to say in his judgment and what order to make. The Court of Appeal can say that he was wrong in law or that there was no evidence to justify a particular finding, but it cannot apply the slip rule to correct a sentence in the judgment that the judge intended to include. In so far as the notice of appeal in the present case seeks an order that Harman J's judgment be amended by the deletion of the words 'That was dishonest' , the appeal cannot succeed. It is, as I have said, for the judge to decide what to say in his judgment."

The Court went on to hold that the Judge was not entitled to find dishonesty since the application came before him on agreed facts which did not include dishonesty. The Court also found that the period of disqualification was nonetheless justified, but made clear in its judgment that the director would leave (the Court of Appeal) without any finding of dishonesty against him.

43. While we are considering an application for judicial review, in our judgment the same principles apply. No more than on appeal can we re-write the judgment of Recorder Osborne. All we can do is to say that the Recorder was not entitled to make a conclusive finding of dishonesty or fraud against MRH and they should be treated as not having such a finding made against them.
44. Mr Knowles argued that we could excise the objectionable parts of the Recorder's judgment in the same way that parts of a coroner's verdict may be quashed in judicial review proceedings - see e.g. R v Southwark Coroner's Court ex parte Epsom Health Care NHS Trust (1994) 158 JP 973 where a lack of care finding was deleted but the remainder of the verdict remained. We did not find this argument persuasive. The coroner's verdict is, roughly speaking, equivalent to a court's order, parts of which may be impugned while other parts are not challenged. The Administrative Court can quash the parts which are unlawful and preserve those which are lawful.
45. Mr Knowles referred as well to the situation where part only of policy guidance may be quashed - see e.g. R v Secretary of State for the Environment ex parte Lancashire County Council [1994] 4 All ER 165. It is sufficient to say that we did not find this persuasive either. Policy guidance simply is not analogous to a first instance judgment.
46. Declaratory relief is a possibility, but that is a discretionary remedy (like all others granted on judicial review). In our view, the position is adequately explained in our judgment. A declaration, in addition, is unnecessary.
47. The interim relief in this case prohibited dissemination of the transcript of Recorder Osborne's judgment of 13^th October 2014 and also any dissemination of the transcript of the hearing of 18^th November 2014. The orders lasted until the disposal of the substantive applications for judicial review. That has now occurred and it follows that his orders have come to an end. We will return to another aspect of Supperstone J's interim relief later.

The Apex/ Pennington claim

48. The Recorder quite clearly made findings that MRH had behaved dishonestly and fraudulently. The position is not quite as clear cut in relation to Apex and Pennington, but, on balance, we consider that Ms Anderson is right to submit that that was the inference to be drawn from his judgment.
49. At the beginning of his judgment, the Recorder recalled the aphorism used by investigative journalists, "follow the money", to find who is responsible or where truth lies. At [18] he referred to the statement of Junaid Patel (a fleet manager for Apex) and said, "he is the one profiting from this litigation because in exchange for hiring out an 'F' registered Astra and an 'F'^[1] registered Mondeo he is seeking a sum of something like £27,000 for the damage due to the first claimant's £500 ancient vehicle."
50. Had the Recorder restricted himself to the observation that Apex and Pennington were among those who benefited from the claim, there could have been no objection. However, he seems to have gone further. We have quoted above what the Recorder said at paragraphs [6] and [23] of his judgment in which he found that MRH had been fraudulent and had behaved in that way to benefit (among others) Apex and Pennington. Taking all this together, we think that the clear implication was that the Recorder was saying that Apex and Pennington were parties to the fraud which was for their benefit.
51. Apex's fleet manager, Junaid Patel, had, as we have mentioned provided a witness statement in the County Court proceedings. He did so to respond to the witness statement of Mr Toft regarding the 11 other collisions which had similar features and where, to some extent, similar claims had been made for special damages. That, though, was in the context of the pleaded defence by Ms Mason which expressly disavowed any allegation of fraud on the part of Apex or Pennington.
52. In a witness statement dated 5^th December 2014, Mr Muhammad Patel, a director of Pennington, says that he first learned of the application to join Pennington to the County Court action on 18^th November 2014. He had not received Ms Mason's application regarding this or known that Ms Mason was asking that Pennington, among others should pay the costs of the proceedings. Mr Patel says the application notice used an old address of Pennington's. Cecil Marais, a director of Apex, also made a witness statement on 5^th December 2014. He says that he first learned of the application to join Apex for cost purposes on the morning of 18^th November 2014. He immediately wrote to the Court asking that the hearing should be adjourned to allow his company to obtain legal advice. The Recorder appears to have received the letter but decided to proceed with the hearing nonetheless.
53. We do not think it right to distinguish between Apex and Pennington on the one hand and MRH on the other because the latter did and the former did not take steps to try to persuade the Recorder to amend his oral judgment. MRH had instructed counsel to attend when that judgment was given. Apex and Pennington were not involved at that stage.
54. In our judgment the Recorder also behaved unfairly in finding that Apex and Pennington were involved in fraud and dishonesty. Our reasons are the same as we have given for making the same finding in favour of MRH. Like Mr Knowles, Ms Anderson accepted that the Recorder would have been entitled (if he thought the evidence justified it) to articulate his concerns or suspicions that the hirers were party to a fraud. What he could not properly do, in the circumstances, was make unqualified findings that they had been fraudulent or dishonest or go beyond expressing a provisional view. As we have said in connection with MRH, we cannot "amend" the judgment of the Recorder and we do not think a declaration would serve any useful purpose.

Further proceedings in the county court

55. The Recorder acceded to Ms Mason's application for Apex and Pennington to be joined as parties to the claim for cost purposes. She has an outstanding application for them to pay the costs of the claim pursuant to s.51(1) of the Senior Courts Act 1981. Ms Mason has an outstanding application for MRH to pay the costs of the proceedings as wasted costs. The Recorder has reserved the outstanding costs proceedings to himself. In their witness statements, Mr Muhammad Patel and Mr Cecil Marais have asked the Recorder to recuse himself. So far as we can see, that request remains outstanding as well.
56. Part of the interim relief granted by Supperstone J. on 15^th December 2014 was that the costs proceedings should be stayed until the determination of this application for judicial review. Since that has now occurred, there will be no need for the stay to continue.
57. How the costs proceedings continue will be a matter for the county court to decide, but we offer the following reflections.

i) Ms Mason's application against MRH was based (as Mr Toft's witness statement in support made clear) on the Recorder's findings that they had behaved fraudulently and dishonestly. We have made clear that the Recorder ought not to have made such findings in the conclusive terms that he did. Ms Mason will need to consider whether she wishes to pursue her application in the light of our judgment and, if so, how it should be amended.

ii) Ms Mason's application against Apex and Pennington may also need to be reconsidered, although she may consider that the Recorder's findings concerning the beneficiaries of the Claimant's claim (which have not been challenged) put this aspect of her application in a different light.

iii) The Recorder will need to consider the request that he recuse himself and vary his order that the outstanding costs issues are reserved to him. Ordinarily, of course, the trial judge would deal with such outstanding matters (see for instance Okritie International Investment Management Ltd. v Urumov [2014] EWCA Civ 1315), but there may be exceptional circumstances where that is inappropriate. One of those is where a fair-minded and informed observer would regard the judge as having pre-determined the matter (the apparent bias test). That can be the case where the judge has already expressed views that are more than provisional but firm and conclusory – see Mengiste v Endowment Fund for the Rehabilitation of Tigray [2013] EWCA Civ 1003 at [58] and [59]. In this case the Recorder made findings of dishonesty which he should not have made and which were not open to him, for the reasons we have given. In our judgment the inevitable result is that the test for apparent bias is satisfied and it would be wrong for him to determine the outstanding costs applications.

Costs of these applications for judicial review

58. Both Claimants seek their costs from the County Court. They rely upon the judgment of Brooke LJ in R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739 at para 47. They submit that what the Recorder did here was "flagrantly improper" and that, by providing a written note for these proceedings, he has not approached these proceedings neutrally, despite what was said in the Acknowledgment of Service. Both are given by Brooke LJ as instances where an inferior tribunal might be ordered to pay the costs of a successful claimant in judicial review proceedings, contrary to the usual practice that there should be no order for costs.
59. We do not accept that the circumstances on these claims sit comfortably within the approach discussed by Brooke LJ who was concerned with proceedings which were the only available mechanism for putting right the error of an inferior court. We have already explained that there was an alternative remedy available to these claimants, namely seeking to be joined as parties to deal with findings made by the Recorder. That is the course which should have been followed. Exceptionally, because of the confused nature of the exchanges in the weeks following the ex tempore judgment, we have concluded that the availability of that remedy should not lead to the dismissal of the claims. However, it remains relevant to the question whether the County Court should pay the Claimant's costs.
60. We do not consider that the Recorder's note suggests that he was other than neutral in the proceedings, in the way described by Brooke LJ. At the time he put in his note it was unclear whether much evidence of what had occurred at the hearing would be before the court. In addition, he was responding to a number of irrelevant imputations against him found in the evidence lodged by MRH.
61. We conclude that there should be no order for costs because, despite the seriousness of the complaint, the Claimants could have dealt with their concerns in the County Court proceedings in a way which would have avoided the need for judicial review proceedings.

Note 1   The Recorder was wrong to say that the Astra and Mondeo were ‘F’ registered. They were in fact registered in 2009, but, by 2012 when they were hired to Mr Yousaf, they were still far from new cars. By chance the first letter of the registration number was ‘F’.    [Back]