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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Pelling, R (on the application of) v Bow County Court  EWCA Civ 122 (22 January 2001)
Cite as:  EWCA Civ 122
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Buxton LJ and Penry-Davey J)
Monday, 22nd January 2001
B e f o r e :
|ON THE APPLICATION OF MICHAEL JOHN PELLING|
|- v -|
|BOW COUNTY COURT|
190 Fleet Street, London EC4A 2AG
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
Crown Copyright ©
"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.'"
"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) ..."
"'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.'"
"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."
"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..."
" . . . 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."
"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  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."
"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."
"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."
"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."
"(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."
"... 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."
"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."
"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."
"No persons beyond this point unless instructed by a member of staff."
"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."
"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."
"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.'"
"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."