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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> McDaid, Re Judicial Review [2014] NIQB 133 (24 September 2014)
URL: http://www.bailii.org/nie/cases/NIHC/QB/2014/133.html
Cite as: [2014] NIQB 133
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| Neutral Citation No. [2014] NIQB 133 | Ref: | HOR9464 |
| Judgment: approved by the Court for handing down | Delivered: | 24/9/2014 |
| (subject to editorial corrections)* |
HORNER J
[1] In this case John McDaid the appellant seeks to judicially review the decision of Master Kelly on 25 March 2014 whereby, inter alia, she refused to grant the relief sought by the applicant. The applicant also seeks leave to judicially review the decision of Mr Justice Deeny and I dismissed that because it is clear that it is not open to one High Court Judge to hear a judicial review of the decision of another High Court judge. The matter was made clear in Re Racal Communications Ltd (1980) when Lord Diplock said:
"Mistakes of law made by judges in the High Court acting in their judicial capacity as such can be corrected only by means of an appeal to an Appellate Court. The High Court is not an inferior tribunal. It is one Her Majesty's courts of law. It is a superior court of record, it was not in the past subject to control by prerogative writ or order nor today is it subject to judicial review which has taken their place."
[2] I therefore concluded that I had no jurisdiction and that the application for judicial review of Mr Justice Deeny's decision was doomed to failure.
[3] I then heard arguments in the application to review Master Kelly's decision. Mr McDaid who represented himself and who presented his case admirably made it clear that this was not an appeal on the merits. He told the court he was applying because of procedural errors and mistakes. He complained of numerous irregularities and deficiencies. I have to stress again that judicial review is concerned with the process and not with the merits of decision.
[4] The appellant's claim for leave to judicially review the decision of Master Kelly must fail because it does not succeed in overcoming the modest threshold necessary in judicial review applications for a number of different grounds.
[5] Firstly, I do not consider that this court has jurisdiction to entertain the application for judicial review from the decision of the Master sitting in her capacity as Bankruptcy Master. My reasons are as follows. Master Kelly is a Bankruptcy Master. In hearing this case she was exercising the jurisdiction of the High Court in performing her role as Bankruptcy Master. The High Court, as I have said, is a superior court of record. She was exercising the jurisdiction of the High Court as provided by Article 359 of the Insolvency (Northern Ireland) Order 1989 and the Insolvency Rules (Northern Ireland) 1991 and I refer to Rules 703 and 742 when sitting as a Bankruptcy Master. In Re Rice's Application for Judicial Review (1998) NI Reports 265 the Court of Appeal confirmed that the Taxing Master's decision, which he exercised pursuant to section 28(2) of the Criminal Appeal (Northern Ireland) Act 1980, was not subject to judicial review. I refer in particular to the conclusion of the court at page 274. It is not open to me to challenge the reasoning of the Court of Appeal as a puisne judge.
[6] Secondly, in any event the complaints made by the appellant in respect of matters such as mixing up the names of the parties in the Order, failing to provide a reference in accordance with the practice direction and other mistakes and typos which I need not mention. The appellant accepted that none of these went to the merit but all went to the process. I consider that as such mistakes do not go to the merits they can be cured. I refer to Rule 7-50 of the Insolvency Rules which will allow them to be corrected where that is found to be the appropriate course.
[7] Thirdly, the appellant also complains that Master Kelly should have recused herself. His main ground centres on the fact that she dealt with other interlocutory applications in a manner that was not in his favour. I do not consider that this satisfies the test for bias or apparent bias which is whether the fair-minded and informed observer having considered the facts would conclude that there was a possibility that the Tribunal was biased. It cannot be the case that because a Master in doing her job finds against someone that such a decision precludes her in the future from hearing other applications in the cases involving the same party.
[8] But more importantly there is an alternative remedy. Mr Justice Deeny has decided how these appeals will be managed. The judicial review application will subvert his decision as to how this appeal should be managed. There is an alternative remedy to judicial review. It seems to me that the way forward suggested by Mr Justice Deeny is in fact the best use of court time and accords with the overarching principle in which the High Court conducts its business as set out in Order 1 Rule 1(1)(A).
[9] Finally, it requires another court of the High Court, that is me, to undermine the decision of another High Court Judge and this is not going to happen. I want to make this clear and I stress to the appellant that he has not been ruled out from complaining about these technical matters in his appeal to Mr Justice Deeny. He will have the opportunity in due course to make them and therefore all the substance of this proposed judicial review can be dealt with and will be dealt with by Mr Justice Deeny on the appeal of the decision of Master Kelly. How that appeal is managed is a matter entirely Mr Justice Deeny and is not a matter for this court.
[10] For all those reasons I refuse both applications for leave. All the arguments that have been addressed to me by the appellant remain open to him in any appeal hearing before the Chancery Judge.