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Cite as: [2001] EWCA Civ 1115

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Neutral Citation Number: [2001] EWCA Civ 1115

(Mr Justice Turner)

Royal Courts of Justice
London WC2
Wednesday, 4th July 2001

B e f o r e :




(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 0171 421 4040
Official Shorthand Writers to the Court)


The Applicant appeared in person.
The Respondent did not appear and was not represented.



Crown Copyright ©

    Wednesday, 4th July 2001

  1. LORD JUSTICE PILL: This is an application for permission to appeal against Turner J's refusal after an oral hearing on 5th April 2001 to grant permission to apply for judicial review. Elias J had refused permission on the papers on 27th February 2001, stating:
  2. "1.This application well out of time and the explanation given is wholly unsatisfactory;
    2.In any event the claimant should not be pursuing judicial review when there is an appeal procedure available to him."
  3. The hearing before Turner J was brief and took the form of the learned judge putting points to the applicant, Mr Stegers, who appeared in person before the judge, as he appears in person before this court today. The judge heard the basic points put by Mr Stegers, made comments upon them and did not give a formal judgment, commenting at the end "end of story".
  4. The present application arises out of an action in the Brighton County Court for breach of contract. Mr Stegers began the action against solicitors who had represented him for some months in late 1993 and early 1994 in a personal injury claim which he was making in the Birmingham County Court. He had on 24th September 1993 been knocked off his bicycle and sustained injuries, including a broken leg and some head injury. He instructed Donne Mileham and Haddock (who I will refer to as "DMH") to handle his claim and legal aid was obtained, as it then could be for that type of action. However, he became dissatisfied with their representation and withdrew his instructions on 28th March 1994. He did not instruct other solicitors, Harris Rosenblatt & Kramer until July 1994 and so was unrepresented for about four months. The action was settled on 22nd April 1998.
  5. The claim against the solicitors was dismissed by Deputy District Judge Jackson on 24th June 1999. The applicant appealed against that decision, but the appeal was dismissed in the Brighton County Court by Her Honour Judge Coates on 7th April 2000. It was in December 2000 that the judicial review proceedings were commenced. I refer briefly to the substance of the action against the solicitors.
  6. In February 1999 the applicant's claim was amended to include a claim for exemplary damages. When the claim was dismissed the Deputy District Judge made a costs order in the sum of £2,500 against the applicant. Her Honour Judge Coates, having dismissed the appeal, also made an order for costs against the applicant in the sum of £1,000. Both the judgment of the District Judge and that of Her Honour Judge Coates are detailed and careful and deal with a number of points which were then raised. I do not need to refer to all of them. Amongst them was an issue as to a medical report. That led to allegations by the applicant against DMH, and today he has explained that to me orally. It appears that DMH had requested the medical report on 8th March 1994. (I refer to page 36 of the bundle.) As I said, their instructions were terminated on 28th March, and they did not receive the medical report until 3rd May. They had informed the applicant that they had contacted the surgeon, but the applicant assumed that, when he withdrew his instructions, all work would cease. They did not deliver to him, he says, the medical report when they received it on 4th May. The applicant accepts that, as part of his general instructions to the solicitors, they were entitled to obtain a medical report. He was not examined by the consultant, but the consultant who provided it had been involved in his treatment. They should not have taken further action, he submits, once his instructions were withdrawn. Moreover, he informed DMH that he was going to handle the matter himself, as he did until a new solicitor was obtained in July 1994. The District Judge dealt with that issue along with other issues. He found that the applicant knew of the report and had commissioned it. The judge rejected any suggestion that a claim against the solicitors could arise out of the circumstances in which the medical report was obtained.
  7. When appealing to the Circuit Judge the applicant included the statement that the very recent discovery of new evidence indicated that the judge was in error in believing that defendants did not need to supply the claimant with a copy of the disputed medical report. There was also a suggestion of bias, in which case the whole arbitration before the District Judge would have been flawed. Reference was also made to the guide to the professional conduct of solicitors and the duty of solicitors to keep their client informed, the principles being set out in the document at page 68 of the bundle.
  8. Before the Circuit Judge a number of points were raised, and it is on the subject of two of these that Mr Stegers' submissions, some of which I have already referred to, were based. The first was the medical report issue. The second was an issue as to the preparation and availability of documents. It is also suggested that the District Judge had been influenced by determinations of the Solicitor's Complaints Bureau and the Legal Services Ombudsman, which the applicant believes to have been reached on false premises by reason of DMH's failure to disclose information.
  9. Her Honour Judge Coates also gave judgment in relation to the medical report. She stated that it was not for her to make findings of fact. I interpose that as a general proposition that is of course correct. The fact-finding tribunal was the District Judge conducting the arbitration and, as the Circuit Judge pointed out in her judgment, the circumstances in which the finding of the District Judge upon an arbitration can be reversed are limited indeed.
  10. The applicant's complaint about the findings of Judge Coates are that she assumed that the applicant knew of the existence of the medical report. Her findings are set out at pages 52 and 53 of the bundle, pages 14 and 15 of the judgment. She stated:
  11. "He may" [that is the applicant] "or may not have had the report sent to him by [DMH] at an earlier stage. It certainly was available, I think I am right in saying, for the arbitration. It was part of the documents in the bundle and I entirely agree with the District Judge that if Mr Stegers had wanted a copy of that report he could have had it by either getting his new solicitors to request the file from [DMH], getting his new solicitors to request the report from [DMH], requesting the report himself from Mr Turnbull (about whom he was well aware), or requesting the report himself from [DMH]. None of this he did. I am afraid, on that basis, I just cannot see where or how the matters relating to and surrounding that report could possibly produce any kind of irregularity or mistake of law that would allow me to set aside the decision of District Judge Jackson, apart from it not even appearing in the pleadings. Even if it did, I cannot see how that is a matter upon which I could rely as a basis for setting aside the judgment."
  12. The applicant submits that the finding of the judge that he knew of the report -- a wrong finding submits the applicant -- was such as to undermine a good deal of his appeal to the judge. He submits that there has been a procedural defect in the approach of the judge in making that false assumption and that the High Court should intervene by way of judicial review.
  13. The second matter I can deal with briefly. It turns upon the preparation of documents by DMH for the hearing of the claim against them. They were required to produce their documents fourteen days before the hearing. They did not do so. A further bundle was ordered. The applicant says he had it only a week before the hearing. He was limited in time, much more limited than the court had originally intended, and an important document, he submits, which was in difficult handwriting, he did not see before the hearing. Had he seen it, he could have made use of it and the outcome may have been different. This again, the applicant submits, shows a procedural failure in the court. The court should have insisted upon its order being complied with. The High Court should intervene by reason of the procedural failure by the County Court.
  14. The applicant seeks to rely upon the Human Rights Act 1998, which is now in force, and in particular section 7, which helpfully the applicant has put in his comprehensive bundle of documents and which appears at 1A:
  15. "7.-(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
    (abring proceedings against the authority under this Act in the appropriate court or tribunal, or
    (b)rely on the Convention right or rights concerned in any legal proceedings
    but only if he is (or would be) a victim of the unlawful act."
  16. Section 9 provides:
  17. "(1) Proceeding under section 7(1)(a) in respect of a judicial act may be brought only-
    (a)by exercising a right of appeal;
    (b)on an application (in Scotland a petition) for judicial review; or
    (c)in such other forum as may be prescribed by rules.
    (2) That does not affect any rule of law which prevents a court from being the subject of judicial review."
  18. Mr Stegers submits that his application is one appropriate for judicial review. It was put to him by Turner J that that was not so, and it has been suggested by Elias J that any remedy he has, or would have had, would have been by way of an attempt to seek the permission of the Court of Appeal to appeal against the County Court decision in favour of the solicitors. But he submits that his proposed appeal is more appropriate for judicial review by appealing or seeking to appeal further the order in the County Court in favour of DMH. I do not consider any point on time in relation to the Human Rights Act 1998. I am certainly not deciding the point, but I approach this application on the basis that I should have regard to section 7 and 9, which I have mentioned.
  19. The applicant has presented his case cogently and persuasively, as well as with courtesy; but I regret that I am quite unable to see that the High Court can have jurisdiction by way of judicial review upon the complaints which the applicant makes. It is right to say that there can be circumstances in which an inferior court can be subject to judicial review -- that most often applies in relation to the Magistrates Court, where it is appropriate to challenge procedures - where defects are alleged by way of application to the High Court. Also, of course, it applies to many other statutory tribunals, as well as to public bodies making administrative decisions. It must not be thought, however, that there is a routine right of judicial review when County Court proceedings are decided against a litigant. Even where it is alleged that the County Court has fallen into error procedurally, the appropriate remedy is to attempt to appeal the decision of the County Court and to pursue private litigation against the parties successful in that court. It is not to seek a remedy against the court itself by way of judicial review. In my judgment the Human Rights Act does not create any such general remedy, and section 9(2) has the effect that there is no general right of appealing decisions in the County Court, when the appeal is based on alleged failures of the procedures followed by judges in that court, by way of judicial review.
  20. The applicant plainly feels strongly about the matters generally, and in particular about the view which the County Court took (both the District Judge and the Circuit Judge) in the respects of which he complains in his written submissions and oral arguments. But any alleged failures of the judges in that respect cannot arguably be the subject of a High Court application for judicial review. The Circuit Judge may have been wrong -- I make no finding about it: it is not my role to do so and it would be wrong for me to do so -- in believing that Mr Stegers knew of the medical report, when he strongly asserts (and in doing so refers to the appropriate dates) that he was not aware of its existence at the material time; also the fact that the court permitted the solicitors not to comply with the first order made in relation to the disclosure of documents. I only add with respect to that that, even if a further appeal had been attempted within the County Court/Court of Appeal private law avenue, the applicant would have been in the gravest difficulty in linking the defects, even if he made them out, with a finding that the eventual decisions of those courts on the basis of all the matters before them were wrong decisions. However, I say that so that the applicant should not assume that his failure is on some technical ground. But I repeat that it is not for me, sitting in this jurisdiction, to attempt to assess the merits of his case against the solicitor.
  21. What I have to consider is whether the jurisdiction of the High Court in judicial review can be invoked in circumstances such as these. While Turner J did not give a judgment as such but merely a series of comments to the applicant, I do, on the facts of this case, agree with those comments, as I do with the that of Elias J. I make no findings upon the delay which Elias J had in mind in refusing the permission to the applicant. I base my decision on the more general ground that, while judicial review is sometimes said to be a remedy of last resort, it does not follow that in all cases where other avenues on appeal have failed an applicant can as of right in all the circumstances come to the High Court and seek judicial review.
  22. I regret that I am in no doubt that there is no prospect whatever of this court quashing the decision of the County Court on the grounds put forward by the applicant, and accordingly this application must be refused.
  23. Order: Application refused.

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