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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 >> Mallaby, R (on the application of) v Harrogate County Court [2001] EWCA Civ 1767 (9 November 2001)
Cite as: [2001] EWCA Civ 1767

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Neutral Citation Number: [2001] EWCA Civ 1767


Royal Courts of Justice
London WC2

Friday, 9th November 2001

B e f o r e :


- v -


(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)


The Claimant did not attend and was unrepresented
The Defendant did not attend and was unrepresented



Crown Copyright ©

    Friday, 9th November 2001

  1. LADY JUSTICE HALE: This is an application for permission to appeal against the order of Lightman J sitting in the Administrative Court on 6th August 2001. The applicant is not present at court today. She was telephoned by the listing office this morning to check whether she knew the date and time of this hearing. They were told that she was not going to attend; she lives in Edinburgh and could not afford the journey and she also had other pressures concerned with the case. She did not ask for an adjournment. In those circumstances it was appropriate for me to consider the matter on the papers which she has put before the court and to give my decision today.
  2. On 6th August 2001, Lightman J refused the applicant permission to apply for judicial review against the Harrogate County Court. The applicant also needs an extension of time in which to seek permission to appeal. Her application was sent to the Court of Appeal on, as she terms it, day 11. She stated that she had been misinformed that the time limit was 14 rather than seven days. The application form was incomplete and inaccurate and so not sealed by the office until 10th September when the errors had been corrected. In those circumstances I would be inclined to exercise my discretion in her favour to permit the application out of time were her application to have any merit.
  3. The background is quite complicated. The applicant and Mr Derek Wensley were in partnership together as farmers. They married in 1976. In 1977 they bought Youdhouse Farm, Eavestone, near Ripon in North Yorkshire. The applicant was an active partner in the farm until 1992. Thereafter she describes herself as a dormant business partner. Presumably the couple separated then. It appears to me that they have children, but I know nothing about the number, age, or living arrangements for those children.
  4. Mr Wensley brought divorce proceedings, which may well have been based upon two years' separation, in the Harrogate County Court. The couple were divorced in March 1995. In June 1995 the applicant brought proceedings against Mr Wensley in the Chancery Division seeking a dissolution of their partnership and a winding-up of its affairs. In October 1995 Mr Wensley gave notice of his intention to apply for ancillary relief in the divorce proceedings. On 17th July 1998 District Judge Lord stayed the Chancery Division action pending determination of Mr Wensley's claim in the divorce proceedings. On 7th August 1998 His Honour Judge McGonigal, sitting as a judge of the Chancery Division, dismissed her appeal from that stay.
  5. The applicant applied to the Court of Appeal for permission to appeal. This was refused by Chadwick LJ on 3rd March 2000: see PTA 1999/7136/A3. The applicant was not present and so he gave her liberty to apply within 21 days. She did apply and that came before Aldous LJ on 12th January 2001. He refused to set aside Chadwick LJ's order. The essence of their view was that the Court of Appeal could not interfere with the exercise of the district judge's discretion that the right forum to determine the parties' dispute was the matrimonial rather than the Chancery proceedings.
  6. The applicant has always maintained that she did not want the matter dealt with under the Matrimonial Causes Act but as a straightforward partnership dispute. To that end she served notice to terminate the partnership on 10th April 2000.
  7. Her applications to the Court of Appeal in the Chancery Division proceedings had delayed progress with the ancillary relief proceedings in the Harrogate County Court. These were eventually tried by District Judge Wood on 12th September 2000. The essence of his order was this. The applicant's interest in the farm was to be transferred to Mr Wensley subject to a charge in favour of the applicant for 54,600 less various costs orders against her, that charge to be exercisable on Mr Wensley's death, the sale of the farmhouse or any part of the land, or 31st January 2011, whichever was the earlier. The milk quota was to be transferred to Mr Wensley. Upon those two transfers taking place Mr Wensley was to pay the applicant a lump sum of 80,000 or less if certain cattle passports were not returned. Apart from that, the order provided for a clean break between the parties. It also declared that the partnership was dissolved by their conduct on 26th June 1992 and that the order was in full and final settlement of all claims between the parties.
  8. The applicant gave notice of appeal against that order, dated 22nd September 2000. This came before His Honour Judge Hunt on 18th January 2001. The applicant was not present. It is not clear why that was so. An application on her behalf to adjourn the case was dismissed. The appeal was dismissed with costs. The order made by District Judge Wood stood with the dates for compliance amended. Any application to set it aside was reserved to His Honour Judge Hunt.
  9. It is not clear from the papers whether the applicant made use of the possibility of applying to set aside His Honour Judge Hunt's order or whether she applied to this court for permission to appeal against his order, and if she did not do so why she did not do so. Similarly, it is not clear to me from the information available whether the order in the ancillary relief proceedings has been implemented.
  10. The explanation may be that meanwhile the applicant had made application to the Administrative Court, dated 12th December 2000. I am not sure when the details of the grounds, the relief claimed and the statement of facts which is attached to that application were lodged, because the last refers, in addition, to the order of His Honour Judge Hunt on 18th January which obviously post-dated the date of the application. The applicant wanted certiorari to quash the county court orders; mandamus to dismiss the matrimonial court proceedings; mandamus to require the court to declare the date of the dissolution of the partnership April 2000; an injunction to prevent implementation of the orders; an interim order appointing her as manager and receiver of the business and various other related interim orders; damages from the county court and from the government and a declaration that the Matrimonial Causes Act was incompatible with the Human Rights Act, the European Convention on Human Rights, the United Nations Convention on the Rights of the Child and the Convention on the elimination of all forms of discrimination against women. She also sought an order that the government amend the incompatible legislation permitting discretionary transfer of property. Finally, she wanted an eviction order against Mr Wensley.
  11. The grounds alleged were procedural impropriety, in obstructing the preparation of the dissolution accounts and holding hearings in private contrary to Article 6 of the European Convention; illegality, in depriving her of property under the Matrimonial Causes Act contrary to various of her rights under the Human Rights Act and the Convention, and also prospectively Protocol 7 of the Convention which has not yet been ratified by the United Kingdom; irrationality, in rewarding Mr Wensley for his prejudicial conduct, fraud, crime; and unreasonableness, as the farm was in any event going to have to be sold to pay the business debts.
  12. The thread running through the applicant's case has been that it is unjust to wives such as herself who are equal partners in a business with their husbands to deal with it by way of discretionary transfer, thus potentially meaning that she does not get a full half share in the property. She has also argued that the county court was unduly biased in favour of Mr Wensley, as a man, being more appropriate to continue running the farm.
  13. Lightman J refused her permission to apply for judicial review. He tried to explain to her that judicial review was not the right way to challenge the decision of the court; the right way to do that was to appeal.
  14. In her appellant's notice the applicant explains that she proceeded by way of judicial review because she wants to achieve a change in the law. She relies on the Civil Procedure Rules, Practice Direction 16.1 on Statements of Case, and 19.4A on Procedure on Applications for declarations of incompatibility. Those do not in fact assist her because they do not relate to judicial review and are on the basis that the procedure which is appropriate to the particular claim is that of an ordinary claim.
  15. She also relies on section 9(1)(b) of the Human Rights Act. Section 9(1)(b) provides as follows:
  16. "Proceedings 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... for judicial review; or
    (c) in such other forum as may be prescribed by rules."
  17. However, section 9(1)(b) is subject to section 9(2) which provides:
  18. "That does not affect any rule of law which prevents a court from being the subject of judicial review."
  19. There is no rule of law which prevents a county court being the subject of judicial review. Judicial review is a remedy which is available to the higher courts to control the lawfulness of the actions of inferior courts or tribunals or administrative authorities. The county court is an inferior court for this purpose. If there were any doubt about that the County Courts Act 1984 would set it at rest, because sections 83 and 84 provide for the effect of a grant of leave to apply for certiorari or prohibition against a county court. It is however noteworthy that section 84 provides that an application for prohibition is to be treated as if it were an appeal. Thus technically there is such jurisdiction; but that is very far from being the end of the matter. Judicial review is a discretionary remedy. It will normally be refused if an alternative remedy is available and appropriate.
  20. Here undoubtedly, the correct remedy was to seek to appeal against the county court's decision. An appeal gives greater scope than judicial review. It can address, if appropriate, the merits of the decision, for example, in the light of the recent decision of the House of Lords in White v White [2001] 1 AC 596, which also concerned a farming partnership; it could also address such matters as whether the court did inappropriately assume that the ex-husband should have the farm rather than the ex-wife, and so on. An appeal can address any procedural irregularities. It could also deal with any appropriate arguments that the orders made contravene Convention rights. A declaration of incompatibility can be sought from a higher court in those proceedings. The effect of a declaration of incompatibility is the same no matter what proceedings are brought. It will not quash the decision itself, but triggers a fast track procedure for changing the law.
  21. The most important point in this case is that the applicant also wants relief against Mr Wensley and orders that will affect his present entitlements under the ancillary relief order. In other words she wants a private law remedy against him. In those circumstances it must be appropriate to proceed by way of appeal rather than by way of judicial review against the county court.
  22. It should also be pointed out that the chances of success on a judicial review are very slim. It cannot be irrational for a county court to proceed to hear and determine a Matrimonial Causes Act claim when others have decided (confirmed by this court) that that is the proper forum in which to determine the dispute.
  23. The applicant is of course way out of time for seeking to appeal against Judge Hunt's order. It may be that were she to apply to do so this court would have some sympathy for the time element in that application, given that she has throughout been seeking to challenge it albeit in an inappropriate fashion. I know not. That is a matter which the applicant should consider with some care. I say nothing at all about the potential merits of such an appeal.
  24. Since I began this judgment a faxed letter has been received from the applicant. It reads as follows:
  25. "Please accept my apologies for being unable to attend today's hearing, and for my late notification. This is for physical (exhaustion) and financial reasons. I was also informed by Harrogate County Court that my application at the Court of Appeal would be futile so it was ignored at my appeal hearing in that court. I would like my application to be accepted or, if necessary, an adjournment be granted. I enclose a letter of support * as soon as possible *"
  26. From that it would appear that the applicant was content for this application to proceed provided that it succeeded, and if not, wished for an adjournment to be granted. This is very similar to what happened on her application before Chadwick LJ.
  27. I propose, for the reasons that I have given, to dismiss her application for permission to appeal, but, as did Chadwick LJ, give her liberty to apply, that application being reserved to me, within 21 days should she seek an oral hearing of her application, which of course she would have to attend. It would be a matter for her to consider whether she wished to couple any such application with an application for permission to appeal out of time against the order of Judge Hunt.
  28. I will also direct that a transcript of this judgment be prepared at public expense and a copy served upon the applicant and upon the Harrogate County Court.
  29. (Application dismissed; no order for costs; copy of transcript to be provided to the applicant and Harrogate County Court at public expense).

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