1 Oxford Row
B e f o r e :
|R (OAO) MR HUSSAIN|
|KIRKLEES MAGISTRATES' COURT|
MR REAY by or on behalf of the Defendant
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HHJ DAVIS-WHITE QC:
'I think it very unfortunate that the expression 'frivolous' ever entered the lexicon of procedural jargon. To the man or woman in the street, frivolous is suggestive of light-heartedness or propensity to humour, and these are not qualities associated with most appellants or prospective appellantsWhat the expression means in this context is, in my view, that the Court considers that the application to be futile, misconceived, hopeless or academic. That is not a conclusion to which justices, to whom an application to state a case is made, will often or likely come. It is not a conclusion to which they can properly come, simply because they consider their decision to be right or immune from challenge. Still less, it is at a conclusion to which they can properly come out of a desire to obstruct a challenge to their decision, or out of misplaced amour propre. However, there are cases in which justices can properly form an opinion that an application is frivolous. Where they do, it will be very helpful to indicate, however briefly, why they form that opinion. A blunt and unexplained refusal, as in this case, now, will leave an applicant entirely uncertain as to why justices regard an application as futile, misconceived, hopeless or academic. Such uncertainty is liable to lead to unnecessary litigation and expenditure on costs.'
'(a) The issue in this case is whether the district judge was wrong to refuse to state a case following the claimant's request to do so. He found the request as frivolous. There is a difference between an unpromising appeal and one which is futile, misconceived, hopeless or academic'.
Pausing there, that largely picks up the distinction that I have already drawn attention to, which the then Lord Chief Justice sets out in the Mildenhall case.
'(b) Whilst the primary facts in this case were essentially agreed as were the principles of law to be applied the claimant submitted that the District Judge was not entitled to find that the application to set aside had not been made promptly on the facts of this case. This was a secondary conclusion drawn from the primary facts, about which there was a genuine dispute between the parties. (c) The claimant is entitled to request the judge to state a case unless the case is frivolous. It is arguable in this case, that the request was not frivolous, even though the district judge considers that an appeal is unlikely to succeed for the reasons he gives. (d) Where the request asks the district judge to state a case on matters he did not actually decide, then he was right to refuse to state a case as the request was academic in that respect'.
'11. Here, the appellant, having knowledge of the order in December 2015, and having instructed solicitors to attend to the matter, delayed 11 months before applying to the Court to set aside the order. Such as delay was far without the period within which the Administrative Court in Brighton and Hove Justices required applications to set aside to be made as to render the Appellants position unarguable on the issue of promptness alone. I did not then need to consider the extent of any substantial procedure error, defect or mishap.
12. The law is as set out in paragraph 10 above'.
I will come back to that in a moment.
'I was taken to it by the parties. I expressly applied it in this case. An agreed fact is that the Appellant delayed 11 months from having actual notice of the order before making application to set aside. That is not prompt. There is no error of law on this issue, which was the sole issue I had to consider as a preliminary issue, that requires me to state a case for the opinion of the High Court. The Appellant has not identified any error of law on the issue of costs. There is no error of law on the issue of costs that requires me to state a case for the opinion of the High Court'.
He then goes on to say that the application is doomed to failure; it is frivolous and a misuse of court time. As regards the relevant law, in paragraph 10 of his decision, he refers to the Brighton and Hove Justices case and sets out paragraphs 31 and 33, to which I think I have already referred.