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
		29 November 2016

1. MR JUSTICE OUSELEY: This is a renewed application for permission to apply for judicial review. The body being reviewed is the Central London County Court. The matter arises this way: there was a contractual dispute over the hire of certain office equipment between Charles Eta and Co Solicitors and Xerox Finance Ltd. There were issues about sums that were due, about whether the equipment was defective, about whether the Consumer Credit Act applied.
2. The issue came on for hearing before the district judge in two stages. The first, on 10 November 2015, for which there is an approved judgment, was Xerox Finance Ltd's application for summary judgment and for return of goods. The judge went through the defence. He discussed the question of the defects. He did not find what Mr Eta said persuasive. He considered certain emails which were marked "Without Prejudice" but did not consider them actually to be documents forming part of a negotiating chain. He dealt with issues in relation to forgery but came to the conclusion that there would be summary judgment for the claimant and an order for return of the goods. He did not, at that stage, assess the sum required but dealt with that on 9 December 2015 via telephone link. Mr Eta had to leave his end of the phone after 28 minutes, believing it to be only a half hour hearing. The judge said it was a one-hour hearing. The judge at the end of that hearing concluded that what the claimant sought by way of rental was to be paid. It is a sum, as I understand it, of the order of £13,000.
3. Following that, the defendant in those proceedings sought permission to appeal. The matter came on before his Honour Judge Hand at Central London County Court for an oral hearing. On 15 July 2016 the judge refused permission to appeal in respect of both appeals and dismissed the appeals. There were two actions in fact in the County Court relating to this subject matter. He said that no further appeal lay from his judgment, which could only be challenged by judicial review. That indeed is correct. Accordingly, these proceedings were begun.
4. The grounds of review took issue with the decision of the judge in a variety of ways. It was said that the decision was wrong in law, perverse and irrational, having regard to statutory provisions not applied by the lower court. The grounds sought a declaration that those provisions did apply. The district judge had rejected their application for reasons which he gave, which related to the agreement being a straightforward hire agreement in relation to the goods. It was said that the court did not properly apply Part 24. It was said in particular that it was unlawful to refer to "Without Prejudice" emails.
5. The application was considered on paper by Mr Robin Purchas QC, sitting as a Deputy High Court Judge. On 24 October 2016 he refused permission. Helpfully for the claimant, or it ought to have been helpfully, he identified the principles to be applied, derived from R (on the application of Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475, and R (on the application of Strickson) v Preston County Court [2007] EWCA Civ 1132. He made it clear that an exceptional case had to be shown. It was in response to that refusal that Mr Eta sought for the first time a transcript of the hearing before his Honour Judge Hand. On 1 November he was notified of the hearing for today. He had taken some steps in the subsequent month to chase the transcript, finding out what the fee was only yesterday, when he wrote seeking an adjournment which I refuse, which he has renewed today.
6. I have refused the application for an adjournment for him to obtain the transcript for this reason: quite apart from the length of time he has taken to get round to seeking the transcript, which he says inevitably he must have needed at some point were he to succeed, he has not addressed the point made by Mr Purchas refusing permission. Mr Purchas pointed out that the principles were to be found in two cases, both of which appear not to have been understood by Mr Eta, if read. The jurisdiction of the Administrative Court is limited to dealing with jurisdictional errors in the narrow sense, that is to say the county court did something that a county court simply has no power to do, or alternatively, where there has been a serious failure in natural justice or other basic procedural requirement such that there has in reality been no hearing.
7. Mr Eta has not at any stage expressed his claim within the framework which is the only framework within which he can succeed. He has sought to say that the points he raised, including the use of "without prejudice" correspondence come within the scope of that; they do not. He has sought to say that he cannot remember all the detail of what transpired at the hearing, which may be correct, and needs a transcript for that end. That is not the point. He only needs the transcript if I can identify the sort of point that he wants to make and that it has scope to come within the framework of Sivasubramaniam. He has plainly failed to do so.
8. If he had demonstrated that there was a point of that sort lurking, perhaps not fully articulated but one which he would have understood, then I might have adjourned for a transcript. There is simply no point in a transcript being obtained in order for Mr Eta to repeat the points he has made and I am not prepared for a transcript to be obtained in order for him to try and find a point that does meet the Sivasubramaniam point, when he has had ample time since the hearing on 15 July to develop such a point and he has not done so or even attempted to do so. Accordingly, I refuse permission to apply for judicial review.
9. I have to say that this claim is totally without merit. It does not stop him going further but I say that because the repetition of these claims could lead to an Extended Civil Restraint Order.
10. MR FINCH: Thank you, my Lord.
11. The only issue that remains is that you should have received a costs schedule from those instructing me. While it is unusual in the usual course of things for an interested party to gain its costs of an oral permission hearing, I say that this case is one of the extreme cases in which such an order should be considered and I invite you to do so on the basis that it was totally without merit in the first instance. On the papers Mr Purchas QC identified the difficulty Mr Eta was going to have. Mr Eta, wilfully blind or otherwise, ignored that and pursued this matter to a renewed oral application and put my clients to further cost.
12. MR JUSTICE OUSELEY: Do you have the passage in the White Book?
13. MR FINCH: I think it is page 1815, my Lord.
14. MR JUSTICE OUSELEY: It is really B:

"Persistence by the claimant of the claim after having been alerted to facts or the law demonstrating its hopelessness."

15. MR FINCH: Yes.
16. MR JUSTICE OUSELEY: The problem is: why should he pay your costs --
17. MR FINCH: Of attending.
18. MR JUSTICE OUSELEY: -- attending a hopeless case. Do you want to say anything about the application, Mr Eta?
19. MR ETA: About the application for costs?
20. MR JUSTICE OUSELEY: The application of costs in the sum of £981. (To Mr Finch) Has Mr Eta been given a copy?
21. MR FINCH: Yes. I have a spare copy as well.
22. I have the letters proving services if necessary.
23. MR JUSTICE OUSELEY: What do you want to say about the principle? The principle is that normally Mr Finch would not get costs because it is a renewed application, but there is provision for, exceptionally, a costs order to be made. The relevant one here is B:

"Persistence by the claimant of the claim after having been alerted to facts or the law demonstrating its hopelessness."

24. MR ETA: Your Lordship's raised that point here. We basically were entitled to renew this application, which we did. The respondents are not entitled to costs but they have the option to attend if they did not want to. To say that it is a hopeless application, I would say it is unfair in the sense that what we are basically saying is that we need the transcript to be able to establish our case.
25. MR JUSTICE OUSELEY: No, I have already held --
26. MR ETA: To say that because we have said that that makes it hopeless, that would not be correct. In the sense that there were points of law here raised: the issue of without prejudice matters, the issue of fairness --
27. MR JUSTICE OUSELEY: There were issues of law but not ones you can raise before me.
28. MR ETA: In terms of amount of not having a fair hearing because (Inaudible) there were issues on the grounds. To say that those issues should not have been raised and makes it without merit, I would say it is unfair to the applicant.
29. MR JUSTICE OUSELEY: What do you want to say about the amount?
30. MR ETA: In respect of the amount, I have just looked at it now. The first bit says, "30 minutes for letters". I do not understand how they spent 30 minutes on letters. I think that should be disallowed there. Again, there "letters", the next page also -- and I have not seen the breakdown schedule for which letters --
31. MR JUSTICE OUSELEY: I think there is a page missing, actually.
32. MR ETA: There is no schedule as to which letters -- only provisional statement of costs, which is on the schedule. They have listed letters, 18 minutes, (Inaudible) again. Telephone call. I do not understand, a telephone call to who? We have not had a phone call from them. Again, there is nothing in the schedule saying which telephone call is being referred to.
33. Counsel is here in court which to me, he did not need to attend. Apart from counsel's fees, I would say the items listed there are unjustified. Even though I would say that counsel did not need to attend today, on the other hand, counsel is here. I would have said there was no need. He should bear that cost.
34. MR JUSTICE OUSELEY: No need for you to be here; that is what Mr Eta says?
35. MR FINCH: That is what they say, my Lord, and as it transpires today that may have been correct with how this hearing progressed. The concern was of course with the issue with section 77A of the Consumer Credit Act being in issue and at the time that I was instructed not being aware of the knowledge of any given judge in the Administrative Court on those issues, whether there was a concern that might effectively trigger the Sivasubramaniam type case law. Likewise, in terms of the application to adjourn, obviously I was prepared and ready to oppose that, should it have been necessary for a variety of reasons. I take the point that is how it turned out but I was here and prepared and necessary to assist the court, should it have been necessary.
36. MR JUSTICE OUSELEY: I have dismissed this renewed application as one in which the claim was hopeless. It is a case in which, paying attention to the words of the deputy judge refusing permission, should have led to the proceedings not being persisted in. He drew attention to principles and there was no attempt to meet them at any stage.
37. Mr Finch seeks £981 costs by way of an exception to Mount Cook on the basis that the claim is a hopeless one, persisted in after the law had been properly explained by Mr Purchas to the claimant. That is a proper head of exception. It might be questioned why somebody needs to attend on such a case but he pointed to concern about how much judges understood about the Consumer Credit Act, which was not an issue which arose, or about the relevant jurisdiction, which is a little surprising, but on the other hand, where he has the benefit of a judgment and litigation has been persisted in in this way, even more so with an adjournment application being made, it was in my judgment a legitimate act of caution on their part to attend, for which Mr Eta persisting in the claim must pay a proportion.
38. I have concluded, without going into any detailed taxation, that a sum of £750 inclusive meets the requirements of justice. There will be an order for the payment of costs to the defendant in these proceedings for £750. That includes any VAT that is payable. That is in addition to the AOS costs ordered by Mr Purchas.