Neutral Citation no. [2004] NICty 1	Ref:	County 106
Judgment: approved by the Court for handing down	Delivered:	17/02/04
(subject to editorial corrections)

 

 

WRITTEN JUDGMENT IN THE MATTER OF

 

 

 

COLIN COOPER

 

Applicant/Respondent

 

AND

 

 

THE ROYAL BRITISH LEGION

 

Respondent/Appellant

 

 

 

HIS HONOUR JUDGE HART QC

RECORDER OF BELFAST

 

 

DELIVERED 17 FEBRUARY 2004

 

 

 

Appearances: 

 

Mr Cooper in person

 

Mr Humphries of counsel, instructed by McCartan Turkington and Breen, solicitors for the Royal British Legion

[1]         This is an appeal by the Royal British Legion seeking to have orders made by District Judge Wells in the course of a preliminary hearing on 15 January in respect of a small claim fixed for hearing on 23 February 2004 varied or rescinded.  I ruled that as the law presently stands a county court judge does not have jurisdiction to entertain an appeal in relation to an interlocutory order made by a district judge in a small claim and said that I would give my detailed reasons for this ruling in writing, which I now do. 

 

[2]          In paragraph 4 of his affidavit in support of the application Mr Kane of McCartan Turkington & Breen solicitors, who act on behalf of the Legion, set out the basis for the appeal in the following terms. 

 

“It is my respectful submission that His Honour District Judge Wells has erred in law in allowing the Applicant to proceed with a second Small Claims Application and I beg to refer to the Respondent’s Notice of Dispute exhibited hereto.  I also believe that the Order of His Honour District Judge Wells ordering the Respondent to disclose to the Applicant a copy of the letter from PR West dated 19 September 2000 is disproportionate and beyond the powers of a District Judge sitting in a Small Claims Court.” 

 

[3]        To place this matter in context I should say something about the background to this litigation as appears from the voluminous documents exhibited by Mr Kane in a further affidavit at my direction.  The following account is necessarily a brief summary of the issues extracted from these documents and from a judgment of Mr Justice Kerr (as he then was) delivered on 17 February 2003 in a judicial review hearing. 

 

[4]        Mr Cooper’s claim is for £317.25 (together with interest and the court fee of £50.00) for expenses incurred by him in his capacity as Treasurer and Membership Secretary of the Holywood Branch of the Royal British Legion.  Mr Cooper visited, and took an interest in the affairs of, Mr Eric West who had been first a voluntary patient and then a detained patient in a psychiatric unit.  Mr West expressed the wish that Mr Cooper should act for him in his financial affairs.  Mr Cooper informed the Committee of the Holywood Branch of the Royal British Legion of this and proceeded to act on behalf of Mr West and incurred legal expenses in so doing.  Subsequently the Branch declined to reimburse him this amount.  It appears that at some stage Mr Cooper became aware of the existence of a letter dated 19 September 2000 written to the Royal British Legion by Mr Philip West, the son of Mr Eric West, and Mr Cooper has sought to obtain discovery of this letter. 

 

[5]        He issued an application for arbitration under the small claims procedure (the first application) on 16 August 2001 claiming reimbursement of £317.25 and discovery of the letter from Mr Philip West.  The first application was heard by District Judge Brownlie at Newtownards and was ultimately dismissed.  Mr Cooper then took proceedings for judicial review in respect of the first application. The application for judicial review was dismissed by Mr Justice Kerr for the reasons set out in his judgment of 17 February 2003.  In the course of his judgment Mr Justice Kerr expressed the view that the letter from Mr West to the Royal British Legion must be discoverable. 

 

[6]        Mr Cooper has now issued a further small claims application in which he again claims the figure of £317.25 as “unpaid expenses incurred as an official of Royal British Legion Holywood Branch May 2001” and seeks discovery of the letter of 19 September 2000 from Mr West.  The Royal British Legion resist this second small claim on a number of grounds, one of which is that the matter has already been decided against Mr Cooper by the decision of District Judge Brownlie to dismiss his first application.

 

[7]        It appears that when District Judge Wells held the preliminary hearing in the second small claim on 15 January 2004 the Royal British Legion failed to persuade him that he should at that stage prevent Mr Cooper pursuing the second small claim.  The Royal British Legion also objected to Mr Cooper obtaining discovery of the letter from Mr West but District Judge Wells held against it and ordered:

 

(1)   that the parties make mutual discovery of any document upon which they intend to rely, and

(2)   specific discovery to Mr Cooper by the Royal British Legion of the letter from Mr West dated 19 September 2000. 

 

[8]        The Royal British Legion sought to persuade this court that it should vary or rescind these orders of District Judge Wells and relied upon the provisions of Order 14(1)(1)(f) of the County Court Rules. 

 

[9]        So far as I am aware this is a wholly novel application and it raises the question whether the county court presently has power to hear an appeal from an interlocutory order made by a district judge exercising the small claims jurisdiction. 

 

[10]      As the law presently stands Mr Humphries accepted that the only methods by which a decision of a district judge in a small claim can be challenged is either to apply for judicial review (as occurred in relation to the first small claim by Mr Cooper) or to appeal to a judge of the High Court by way of case stated under Article 30(4)(b) of the County Courts (NI) Order 1980. This provides that: 

 

            “The district judge may, and shall if so required by the High Court, state for the determination of the High Court any question of law arising out of an award so made”. 

 

            An interlocutory order such as the order for mutual and specific discovery made by District Judge Wells on 15 January is plainly not an “award” as “award” means the final decision of the court. It must follow that no appeal lies to the High Court by way of case stated in relation to an interlocutory order because an interlocutory order is not the final decision in the case. 

 

[11]      It is for this reason that the Royal British Legion relied upon the provisions of Order 14(1)(1)(f) of the County Court Rules.  Order 14(1)(1) provides: 

 

            “Where by any enactment or by direction of the court any application in the course of an action or matter is expressly or by implication authorised to be made to the court or to the Judge or to the district judge or chief clerk, the following provisions shall apply.”

           

[12]      Order 14(1)(1)(f) provides:

 

           “where the district judge or the chief clerk has made an order to which this Order applies, any person who is dissatisfied therewith may apply to the Judge on notice to vary or rescind the order and on the hearing of the application the Judge may confirm, vary or rescind the order and may make such order as he considers just”. 

 

[13]      The issue which I have to consider is whether Order 14 applies to the orders made by District Judge Wells, which I take to be his refusal to dismiss the case on the preliminary point that it has already been decided by District Judge Brownlie’s dismissal of the first application, and the orders for mutual and specific discovery. Small claims cases are dealt with under Order 26 of the County Court Rules. Although Order 26 has been recast and amended in a number of important respects following the recommendations of the Civil Justice Reform Group, it is a self-contained code of procedure under which small claims are administered and decided, and it does not appear to be necessary for a district judge to resort to any of the other provisions of the County Court Rules in order to conduct a small claim hearing. Two examples will suffice. Rule 36 provides for the issue of a witness summons to compel the attendance of a witness, and Rule 32(a) empowers the administration of oaths or affirmations to the parties or witnesses. Of particular relevance to the present case, however, is that mutual or specific discovery is expressly provided for by Rule 35(b). This provides that “all parties shall, subject to any legal objection, agree to – (b) produce any relevant documents items which are in their possession”.  It is therefore unnecessary to resort to the more elaborate procedures of Order 15 to achieve mutual or specific discovery in a small claim. Rule 31 provides that “the judge may adopt any procedure which he considers to be fair”, and whilst a district judge might in a particular case consider it appropriate to import some of the procedures of the county courts by way of analogy, such as directing that a party define its case by giving particulars of it, nevertheless the power to prescribe a particular procedure flows from the discretion vested in the district judge under Order 26 Rule 31 to “..adopt any procedure which he considers to be fair”, and not from the procedures prescribed outside Order 26. The powers contained within Order 26 are sufficiently wide in their scope to permit District Judge Wells to make the orders he did on 15 January. As Order 14(1)(1)(f) only extends to case within Order 14 in my opinion it does not extend to the orders he made under Order 26.

 

[14]      Whilst Order 26 is part of the Court Courts Rule and the small claims courts are administered by the staff of the county courts, the small claims courts are a distinct jurisdiction from the county courts, and it would be wholly inimical to the underlying concept of the small claims courts were the complex procedures of the civil bill courts, and the rules which apply to such procedures, to be incorporated into small claims cases. As Lord Justice Beldam stated in Afzal –v- Ford Motor Company Limited [1994] 4 AER 720 at 733: 

 

            “Court-based small claims arbitration is intended to be a greatly simplified procedure for determining claims.  The district judge remains an adjudicator and the process adversarial but, as the code makes clear, the aim of the procedure is to get away from the rigid rituals which characterise ordinary litigation …” 

 

[15]      Such an objective does not necessarily require there to be a right of appeal against an interlocutory order, and it is perhaps not without significance that, at least in my experience, it has never been suggested before that there is a right to appeal to a county court judge from an interlocutory order in a small claim, although such an appeal does lie from an interlocutory order by a district judge in the exercise of the civil bill jurisdiction. See my judgment in Dorothy Faulkner v Steven Martin and others (unreported, 13 December, 1999).  Whilst the apparent absence of a right to appeal against an interlocutory order may seem strange, this is not unusual. In its Interim Report at 7.59 the Civil Justice Reform Group observed: 

 

            “The absence of any right of appeal, or the provision of a very restricted right of appeal, is a notable and unique feature of many small claims procedures, reflecting the desire to maintain the simple and straightforward nature of the proceedings.  At present, a party to small claims proceedings in Northern Ireland may “appeal” against the decision only on the basis of any question of law arising out of the award; such cases are rare in practice.” 

 

 

[16]    The monetary jurisdiction of the small claims courts has been increased. That it was felt desirable to provide for an appeal, though only on a point of law, to a county court judge as an alternative to an appeal by way of case stated may be seen in the Interim and Final Reports of the Civil Justice Reform Group, notably the discussion of this issue at paragraphs 34 to 45 of the Final Report. The Report recommended at paragraph 45(2) that “ A party should have the right to appeal to the County Court by way of a rehearing against any order of the small claims court, whether an award was made or not.” The Civil Justice Reform Group did not refer to interlocutory appeals in its discussion of this issue. Nevertheless, that it was felt necessary to provide a new avenue of appeal not confined to an “award”, lends some support, in my opinion, to the conclusion that there is no right of appeal to the County Court against an interlocutory decision in relation to small claims proceedings commenced before 19 April 2004.

 

[17]      That an appeal from such an order does not presently lie from a decision of a district judge sitting in a small claims court may also be possibly inferred from the amendments to Article 30 of the County Courts (Northern Ireland) Order 1980 inserted by section 74 of the Justice (Northern Ireland) Act 2002. Although the right to appeal by way of case stated has been altered so that the appeal will lie to the Court of Appeal and not to the High Court, the appeal by case stated is still limited to “any question of law arising out of an award made by the district judge in dealing with the claim … (see Article 30(4)(b) as substituted by Section 74(2)(b) of the Justice (NI) Act, 2002).  However, Article 30(4)(ab) provides an alternative method of appeal as “any party may appeal on a question of law to a judge (not being a deputy judge) against any order, decision or determination”. The contrast between the limitation of the right of appeal by way of a case stated to the Court of Appeal to any question of law arising out of an “award” and the phrase “any order, decision or determination” is striking because the words “any order, decision or determination” are certainly wide enough to include an interlocutory order. Rules have yet to be made in relation to the procedure to be followed in respect of the new right of appeal which will only apply to proceedings commenced on or after 19 April 2004, and as the exact extent of this provision may have to be considered on some future occasion I do not wish to express a concluded view on the scope of the new procedure.

 

[18]      For these reasons I was satisfied that I did not have power to entertain this appeal against the orders made by District Judge Wells and I therefore dismissed the appeal.