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Cite as: [2001] EWCA Civ 122

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Neutral Citation Number: [2001] EWCA Civ 122

(Buxton LJ and Penry-Davey J)

Royal Courts of Justice
London WC2

Monday, 22nd January 2001

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DR. PELLING appeared in Person.


Crown Copyright ©

  1. LORD JUSTICE LAWS: This is an application for permission to appeal against a judgment of the Administrative Court (Buxton LJ and Penry-Davey J) given on 19th October 2000 when it dismissed the applicant's application for judicial review.
  2. The thrust of the application was to assault certain measures contained in the Civil Procedure Rules and associated practice directions as being inconsistent with a basic principle of the common law, to the effect that civil proceedings in our courts are generally heard in public. The applicant also deployed arguments rooted in the European Convention on Human Rights.
  3. The proceedings started life as an application for judicial review permission which went before Keene J (as he then was) and was refused by him on 26th January 2000. However, on 31st March 2000 this court (Roch and Waller LJJ and Sir Christopher Slade) granted permission relating to four limited areas. The subject matter of the proposed judicial review was crisply explained by Buxton LJ in the Administrative Court by reference to the relief sought by the applicant as follows:
  4. "The relief sought was:

    '1. A declaration that Civil Procedure Rules 1998 Rules 39.2(3)(c) and 39.2(3)(d) and 39.2(4) are ultra vires.'

    Rule 39.2(3) reads as follows:

    'A hearing, or any part of it, may be in private if ...

    (c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

    (d) a private hearing is necessary to protect the interests of any child or patient.'"

  5. Buxton LJ does not set out 39.2(4). It is perhaps unnecessary to do so. He continues:
  6. "The second relief sought was:

    '2. A declaration that CPR 1998 Practice Direction 39PD 'Miscellaneous Provisions Relating to Hearings' paragraphs 1.5, 1.6 & 1.7 are ultra vires.'

    Those paragraphs are as follows:

    '1.5 The hearings set out below shall in the first instance be listed by the court as hearings in private under rule 39.2(3)(c) ..."

  7. A number of those are set out, including (2):
  8. "'a claim by a landlord against one or more tenants or former tenants for the repossession of a dwelling house based on the non-payment of rent;

    (3) an application to suspend a warrant of execution or a warrant of possession or to stay execution where the court is being invited to consider the ability of a party to make payments to another party.'

    Eleven types of action are listed as being governed by Practice Direction 1.5, including that which I have just read out. Paragraph 1.6:

    'Rule 39.2(3)(d) states that a hearing may be in private where it involves the interests of a child or patient. This includes the approval of a compromise or settlement on behalf of a child or patient or an application for a payment of money out of court to such a person.'

    1.7 : 'Attention is drawn to paragraph 5.1 of the practice direction which supplements Part 27 (relating to the hearing of claims in the small claims track), which provides that the judge may decide to hold a small claim hearing in private if the parties agree or if a ground mentioned in rule 39.2(3) applies. A hearing of a small claim in premises other than the court will not be a hearing in public.'

    The third relief sought is in the following terms:

    'Declaration that CPR 1998 Practice Direction 27PD 'Small Claims Track' paragraph 4.1(2) is ultra vires.'

    Having said in paragraph 4.1(1) that the general rule is that a small claim hearing will be in public, paragraph 4.1(2) [This is PD 27] continues:

    'The judge may decide to hold it in private if -

    (a) the parties agree, or;

    (b) a ground mentioned in rule 39.2(3) applies.'

    The fourth ground of relief claimed is:

    'Mandamus requiring Bow County Court to hold all civil trials in open court without concealment [of] identities of parties/witnesses, unless authorised otherwise at Common Law or by enactment, and without impeding the access of the public to the hearing.'"

  9. I should explain briefly the reference to the Bow County Court. The factual genesis of the applicant's complaints arose from a visit or visits paid by him to that court in November 1999 when he sought first to watch the conduct of the landlord and tenant list, and later the small claims list, and found that the proceedings were being conducted in private or in camera to the exclusion of the public. He corresponded with the court, asserting, for example, that the practice was contrary to the common law principle laid down in Scott v Scott [1913] AC 417. Not being satisfied with the replies that he received he lodged his application for judicial review on 6th December 1999. It is unnecessary to pause and see what was said by Keene J refusing permission on 26th January 2000. In this court on 31st March 2000 Waller LJ said this at paragraph 10:
  10. "I take the view, and I understand my Lords to agree, that there are points which justify leave being given to Dr Pelling. The points which Dr Pelling can raise must of course be limited to the circumstances with which he was concerned. The circumstances are those where the only questions concern possession actions and small claims. So far as possession actions are concerned, the limit of the points to be argued by Dr Pelling relate to the lawfulness of Part 39.2(3)(c) and 39PD-0011.4(2). In relation to small claims, the limit of the points to be argued are whether small claims are being heard in public in the circumstances described by Dr Pelling, though of course there may have to be evidence as to whether he is accurate in what he describes."

  11. That last point may be called the locked door point. It recalls the applicant's description of his experience at the Bow County Court which was recited by Waller LJ thus (paragraph 9):
  12. "During his visits to the Bow County Court Dr. Pelling tried to gain access as a member of the public to the small claims courts, but found he could not gain access unless a member of staff allowed him through a locked door and escorted him to a District Judge's room down a corridor beyond that locked door. Dr Pelling submits that a District Judge who sits in his chambers and a room to which there is no free access by members of the public is not sitting in public as required..."

  13. Waller LJ in this court proceeded to summarize the points which the appellant was to be permitted to take in this way (paragraph 13):
  14. " . . . first I would say that the question whether the statute gives power to the rule makers to provide that hearings may be in private in the circumstances described in part 39.2(3)(c) should be aired; secondly, the question whether the rules, even if they were intra vires, gave power to issue the particular Practice Direction relating to possession proceedings commencing in private at 39PD-001 1.5(2) should be aired; thirdly, what the practice should be as regards possession hearings and whether there is room for a different practice in one court rather than another should be considered; and fourthly, whether small claims being tried in the chambers or the room of a District Judge with access only through a locked door with the assistance of a member of the court staff is a hearing in public also should be considered."

  15. Their other Lordships agreed without adding reasoning of their own.
  16. The Administrative Court proceeded to address the applicant's assault on rule 39.2(3)(c) of the Civil Procedure Rules. Buxton LJ recalled its terms and introduced the applicant's argument (paragraph 18):
  17. "Dr. Pelling argued that it was a principle of common law of the highest importance and standing that courts should sit in public. He took us in particular to the well-known case of Scott v Scott [1913] AC 417 to establish that point. He further contended that what is now known, or has recently become known, as the principle of legality means that such a rule cannot be abrogated or undermined by legislation, and a fortiori not by delegated legislation, except in very express terms."

  18. Buxton LJ proceeded to cite a well known passage from the speech of Lord Hoffmann in Simms [1999] 3 WLR at 341E, which I need not repeat. He pointed out that the principle of publicity explained in Scott v Scott was by no means absolute. Indeed, Viscount Haldane had said:
  19. "As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield."

  20. Then Buxton LJ said this in paragraph 22:
  21. "It is plain from reading it that Civil Procedure Rule 39.2(3) is facultative. It permits in certain limited circumstances the judge to sit in private, always to be assumed subject to that being in the interests of justice; and that is subject to the general rule set out in rule 39.2(1). The general rule is that the hearing is to be in public. It follows from that that this part of the Civil Procedure Rules does not in any event breach the principle of legality because it does not it itself legislate inconsistently with the content of the rule in Scott v Scott, for the reasons that I have indicated."

  22. In granting permission on 31st March 2000 this court had ordered that the application be not heard until after 2nd October 2000, specifically intending that it should be considered in the light of the European Convention on Human Rights after its incorporation into our law by the Human Rights Act 1998. Buxton LJ proceeded to consider the impact of Article 6 of the Convention. He specifically in paragraph 30 left open the question whether the applicant might be regarded as a victim for the purposes of section 7 of the Human Rights Act. It is to be noted that Treasury counsel appearing for the Bow County Court took no point in this regard as to the applicant's locus. Buxton LJ's approach to the assault on CPR 39.2(3)(c), advanced on Article 6 grounds, was encapsulated in what he described as three difficulties facing the applicant. I take selective quotations only (paragraph 31):
  23. "That said, there are, however, three difficulties facing Dr Pelling's contention:

    (i) first of all, the objection under article 6 falls in the face of the terms and nature of the rule that is said to be in breach of that article. As I have already pointed out, it does not bar the citizen from the courts in all circumstances. It gives weight in terms to the requirements of article 6 itself as indeed paragraph 39.4A of the practice direction emphasises.

    (ii) article 6 itself does not create absolute rights."

  24. A good deal of reasoning follows in relation to that. Finally on this point:
  25. "(iii) the European Convention recognizes a discretionary judgment in the national court in the way in which it applies the precepts of article 6 within the national legal order. That perception is sometimes confused with the doctrine of margin of appreciation ... At the same time, however, the fact that the doctrine of margin of appreciation exists in the jurisprudence of the Strasbourg court underlines the degree to which the rules themselves contain a latitude for judgment on the part of the national authorities."

  26. There is then reference to the speech of Lord Hope of Craighead in the well known case of Kebilene [1999] 3 WLR, a passage at 994C; and the learned Lord Justice concludes this aspect of the case in paragraph 34 in these words:
  27. "... looking at the terms of article 6 and looking at the terms of the rule that is said to breach it, I find no prospect whatsoever of the rule of which we are concerned being found to be, as a rule, a breach of article 6."

  28. I agree with the whole of this reasoning. It does not seem to me to be profitable for me to attempt to add anything. It is fair to say that the applicant indicated to me in the course of his courteous submissions this morning that he welcomed Buxton LJ's ruling as regards 39.2(3)(c). As will appear in a moment, the principal thrust of his complaint is rather to the Practice Direction. That indeed was the second issue which the Court of Appeal allowed to go forward. It will be recalled that it was whether the rules, assuming them to be intra vires, gave power to issue Practice Direction 39 relating to possession proceedings in private. Buxton LJ considered that this issue stood or fell with the issue relating to rule 39.2(3)(c) which he had just held to be intra vires. I will give my conclusions on the question in a moment when I have summarised the remaining issues.
  29. The third issue permitted to go forward by the Court of Appeal was what the practice should be as regards possession hearings and whether there is room for a different practice in one court rather than another should be considered. As to that Buxton said:
  30. "This again turns on the legality of the rules and the practice directions. The whole point under those rules is that, in applying them, the courts have a discretion to rule according to cases. I cannot see that relief in terms of ordering a particular practice, and certainly in terms of ordering a uniformity of practice, could be in any way open to this court."

  31. I agree with this. Although the applicant did not say so in terms, my understanding of his submissions is that he is less interested in this particular dimension which was allowed to go forward by the Court of Appeal than he is in the vires of the practice direction.
  32. The fourth issue was whether small claims being tried in the chambers or the room of the district judge with access only through a locked door with the assistance of a member of the court staff constitutes a hearing in public. In dealing with this Buxton LJ set out the relevant terms of the applicant's own letter to the county court upon which he relied as evidence (see paragraph 48 of the judgment). He also cited the statement on affidavit of Mrs Bennett, an officer of the Bow County Court (see paragraphs 50 to 51). I should read from paragraphs 7 and 8 of Mrs Bennett's statement cited by Buxton LJ in paragraph 50 of his judgment:
  33. "At Bow it is thought necessary to keep the door leading to the District Judge's rooms on the ground floor locked for security reasons. It would be too easy for someone to enter that corridor unnoticed or unchallenged, given its position in the building. No equivalent measure is in force in relation to the District Judge's rooms on the first floor. It is also the case that no security problem is perceived to exist there; people coming up the stairs will inevitably meet an usher before reaching those rooms.

    8. The locked door leading to the District Judge's rooms on the ground floor does not have a sign on it, nor has it ever had a sign as far as I know. Persons unfamiliar with Bow County Court would not be aware that District Judges' rooms were to be found in the corridor leading from that door. In the foyer of the court are displayed cause lists. Any member of the public wishing to attend a hearing in chambers which is open to the public can ask an usher who will escort them to the room in question. In practice this occurs very rarely, although we are now and then approached by persons studying law or some other profession. There is nothing displayed in writing at Bow County Court which would tend to suggest to members of the public that they were not entitled to attend hearings of small claims cases before District Judges, and no member of the court staff would seek to give that impression. At one time the sign referred to and exhibited [by the applicant] was displayed in various parts of the building."

  34. Buxton LJ explained that that was a sign stating:
  35. "No persons beyond this point unless instructed by a member of staff."

  36. Buxton LJ dealt with the matter in this way in paragraph 52:
  37. "The question for us is whether the arrangement as a whole sufficiently inhibited members of the public from attending court as to make the hearing one in private, rather than in public. I am quite clear on the facts as they now appear that it did not do so, and the hearings to which this ground relates did not take place other than in public. I am, however, even more clear than that that this aspect of the case does not justify the issue of any relief by this court."

  38. Before me the applicant cited two authorities, McPherson v McPherson [1935] All ER 105 in the Privy Council and Storer v British Gas [2000] 2 All ER 440. I will not enter into the details of those authorities. It seems to me that in this sort of area each case has to be judged on its facts. There was clearly a substantive reason for having the door locked to the district judge's room on the ground floor. The reason was to maintain security. It seems to me that Buxton LJ was wholly entitled to conclude as he did, given the material placed before him by Mrs Bennett. Like him I would not grant relief in this respect. Penry-Davey J agreed with the whole of Buxton LJ's reasoning.
  39. In his grounds placed before this court, the applicant first says that the Administrative Court was wrong to hold that the issue concerning PD39 paragraph 1.5(2) stood or fell with the issues relating to Rule 39.2(3)(c). The point taken by the applicant is that the practice direction creates a presumption of a private hearing whereas the fundamental principle of the common law is to the opposite effect. The presumption is in favour of a public hearing. This was the main emphasis of his submissions before me. He argued moreover that there is nothing in the practice direction which restricts private listings to cases where publicity would produce a denial of justice. To that extent the practice direction is inconsistent with Scott v Scott; and he said that he felt that he had lost a fundamental right by what he chose to describe as legal trickery.
  40. There is no doubt whatever as to the sincerity, and indeed sophistication, of the applicant's submissions, but the point is a bad one. What the practice direction is doing here is merely giving instances of situations in which, in the ordinary way, the discretion in the prior rule to hold a private hearing would fall to be exercised. The matter is not hard and fast. In my judgment this is quite consistent with the requirements of justice as recognised in Scott V Scott.
  41. The applicant also says in his skeleton argument (he did not refer specifically in terms to this this morning but I deal with it) that the Divisional Court erred in treating the matter as merely an administrative matter or a listing provision. I do not consider that the Administrative Court can be fairly accused of treating the matter in that way. Buxton LJ in his judgment substantially confronted the question whether the rule and practice direction were or were not ultra vires. It is also said that the Administrative Court should have allowed the arguments to encompass other provisions in the practice direction; but Buxton LJ said that the arguments that applied to paragraph 1.5(2) applied mutatis mutandis to these other paragraphs. I see no reason to disagree with that, but in any event the primary thrust of the applicant's submissions to me went to paragraph 1.5(2).
  42. The applicant was at pains to emphasize a different complaint which however he did not have permission to canvass, either from the Court of Appeal or the Divisional Court. I may first explain the point in question. It concerns PD27, paragraph 4.1(2)(a). I have already quoted it where it is set out in Buxton LJ's judgment. For ease of reference these are the words:
  43. "4.1(1) The general rule is that a small claim hearing will be in public;

    (2) but the judge may decide to hold it in private if:

    (a) the parties agree, or

    (b) a ground mentioned in rule 39.2(3) applies."

  44. The argument which the applicant desires to advance is that it is contrary to essential constitutional principles to allow a position in which a hearing may be turned into a private hearing merely by the agreement of the parties. He cited a passage from the speech of Lord Shaw of Dunfermline in Scott at page 481. Lord Shaw there quoted some words of Earl Cairns in an earlier case Andrew v Raeburn as follows:
  45. "In a concluding sentence the learned Earl said: 'Under these circumstances I do not think it would be right to deviate from what has undoubtedly been the practice of the court - not to hear a case in private except with the consent of both parties.' To infer from this sentence, not adopted or concurred in by either James LJ or Sir John Mellish, that it was open to the judges of England to turn their Courts into secret tribunals, if both parties to any suits asked or consented to that being done, is to make an inference from which I feel certain that the noble Earl would himself have shrunk, and against which, indeed, my belief is that he would have strongly protested. For myself, I think such an inference to be contrary to one of the elements which constitute our true security for justice under the Constitution, and to form no warrant for an invasion and inversion of that security, such as has been made in the present case.'"

  46. In declining to allow the applicant to canvass arguments more widely than had been permitted by the Court of Appeal in March 2000, Buxton LJ said this:
  47. "We, however, base our ruling not on technical consideration of locus, but on the inappropriateness in general terms of extending these proceedings to all of the matters of which Dr Pelling complains. The evidence and the arguments that he adduces are all directed at the question of, in particular, whether the rules of which he complains can be shown to be ultra vires in the context of possession proceedings. It would take the case far beyond that factual matrix in an inconvenient and inappropriate way to include within it what Dr Pelling wishes to be a far more wide-ranging attack on other aspects of the rules, in particular the rules as they apply in domestic proceedings. We therefore did not grant Dr Pelling leave to argue any matter other than that in respect of which he had been given permission by the Court of Appeal, and it is right that I should put on record that he punctiliously observed that ruling when he was addressing us."

  48. I should say, as I indicated to the applicant in the course of argument, that I would not proceed in this judgment to hold against him on the footing that the Divisional Court lacked the power to extend permission more widely than it had been granted by the Court of Appeal. I make no decision to that effect, but assume for present purposes that such a power existed. As the applicant acknowledged candidly before me, he could only be entitled to take this point by way of judicial review proceedings so to speak as a representative of the public, acting as a public interest plaintiff. It seems to me that this is not a case where the court should allow a public interest challenge to go forward constituted by this application made by Dr. Pelling. I would agree with what was said by Buxton LJ. More specifically, it seems to me that if there were to be arguments as to the vires of PD27 paragraph 4.1(1)(2)(a) the court would require assistance on a wider canvass relating to where the public interest lay. It is to be noted that the rule is concerned only with small claims hearings. There may be good reasons for considering that in cases where the parties do agree to hold such a hearing in private, that is generally or at the least frequently consonant with the dictates of justice upon which Scott v Scott places particular emphasis. I am by no means holding that the point as to rule 4.1(2)(a) is an arguable one but I certainly hold that it should not be argued in these proceedings.
  49. The applicant sought to quarrel with the Administrative Court's conclusions as to the locked door point. In relation to that I need do no more than say that I agree with Buxton LJ. In those circumstances permission will be refused.
  50. Order: Application refused; application for permission to appeal to House of Lords refused.

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