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|Neutral Citation Number:  EWCA Civ 1738
|Case Nos: B1/2002/0191 and B1/2002/0107
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon Mr Justice Hooper
|Royal Courts of Justice
London, WC2A 2LL
|28th November 2002
B e f o r e :
LORD PHILLIPS MR
LORD JUSTICE MANCE
LORD JUSTICE LATHAM
| MARKANDU SIVASUBRAMANIAM
|- and -
|WANDSWORTH COUNTY COURT
- and -
MANAGEMENT OF GUILDFORD COLLEGE OF FURTHER & HIGHER EDUCATION & ANOR
|LORD CHANCELLOR'S DEPARTMENT
Miss Leona Powell (instructed by Unison) for the Respondents
Mr Philip Sales (instructed by Lord Chancellors Department) for the Intervener
HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Phillips MR :
This is the judgment of the court
- On 13 December last year, Hooper J. dismissed two applications for permission to proceed to seek judicial review brought by Mr Sivasubramaniam. Each related to a decision of a Circuit Judge sitting in the County Court. He now seeks permission to appeal to this court. The applications were two of a number of similar applications referred to Hooper J. Such applications are, we understand, a novel feature of the civil justice system. They raise important issues of principle as to the circumstances in which an application for judicial review will lie in respect of a decision of a judge in a County Court and the approach to be adopted to such an application. Mr Sivasubramaniam, who has at all stages appeared in person without any professional assistance, was unaware of these issues. They are complex and few litigants in person could be expected to master them. Happily Mr Philip Sales has sought permission to intervene on behalf of the Lord Chancellor's Department ('the Department'). The Department has policy responsibility for civil justice and the court system, including matters relating to the interpretation and application of the procedural rules governing appeals and permission to appeal. It does not seem to us that there is any conflict between the interest that flows from that responsibility and the interest of justice on the facts of these applications. It would, of course, have been open to the Department to instruct counsel to represent the respondents on each application. That is not, we would emphasise, the role in which Mr Sales appears. Accordingly we have granted him permission to intervene in the confidence that his role will not in practice differ from that of what we used to call an 'amicus curiae'.
- The submissions made to us by Mr Sales have been exclusively directed to the issues of law which are of general importance. The two applications have been no more than vehicles used by him, on behalf of the Department, to bring those issues before the Court. The submissions made by Mr Sivasubramaniam have been exclusively directed to the facts. His case is, in essence, that he has been the victim of a conspiracy to pervert the course of justice that has vitiated every relevant stage of each set of proceedings. This averment is the foundation for his claims to relief. The allegations made by Mr Sivasubramaniam are so extreme and extraordinary that no court could properly take them seriously without cogent supporting evidence. Of this there is none. The result is that, quite apart from any problems of practice and procedure, Mr Sivasubramaniam's applications were doomed from the outset. It is right that we should demonstrate shortly why this is so.
- We shall start with some central background facts which we have no reason to question. These are deduced from the documents before us, amplified by information supplied to us by Mr Sivasubramaniam.
- On 20 March 1998 Mr Sivasubramaniam was alarmed by the sound of battering at the door of his flat. He phoned the police who arrived at the same time that the door was broken down. Those responsible proved to be a Doctor, a social worker and two other men. They had an order for his detention under s.2 of the Mental Health Act 1983. This had been obtained on the ground of alleged apprehension that he was not eating and might be at risk of starvation. He was taken to Springfield Mental Hospital and there detained, initially under s.2 and subsequently under s.3 of the Act. Medication was administered, which he found extremely debilitating. After about 5 months he was released, but a social worker called once a week to ensure that he continued to take the medication. Not until March 2001 did he feel that he had recovered from this experience.
- We now turn to summarise briefly Mr Sivasubramaniam's version of events. Mr Sivasubramaniam was adamant that he had never been mentally ill. The events described above were all part of a long-running criminal conspiracy against him involving members of Wandsworth Borough Council solicitors, lawyers and the chief executive and the finance officer and their assistants, members of the Wandsworth police, doctors in the hospitals, social workers, local court officials, judges and the lessee occupying the flat below his. The conspiracy involved unsuccessful attempts to murder him and had been, at least in part, responsible for the events which had led to the claims in both sets of proceedings. It had included impersonation of him, had involved the fraudulent termination of four sets of legal proceedings that he was conducting, including the two with which we are concerned, while he was detained under the Mental Health Act or under medication thereafter, and continued to this day.
- We believe that this summary speaks for itself. No judge could be expected to accept this version of events on the simple assertion of Mr Sivasubramaniam. We turn to summarise the two sets of proceedings.
Proceedings in the Wandsworth County Court.
- In 1990 Mr Sivasubramanium went to work as a laboratory technician at the Guildford College of Further and Higher Education. In 1993 he was made redundant. It is his case that this was unlawful and that Unison were in part responsible for failing properly to protect his interests. He brought proceedings against Unison in Wandsworth County Court, claiming damages. These proceedings were dismissed in February 1999. Mr Sivasubramaniam has given various conflicting explanations of the circumstances in which this occurred, including (i) that a forged application was made for the dismissal of the proceedings and (ii) that he was coerced by threats to his life into discontinuing the proceedings, together with the other three that he was pursuing.
- On 8 February 2001 Mr Sivasubramaniam wrote to the Court Manager at Wandsworth County Court, seeking to reopen the proceedings. In a letter dated 26th February the Court Service wrote to him with regard to the letter of the 8th February stating:
"According to our records this matter was settled on the 22nd February 1999."
The letter went on:
"Unfortunately this file has been destroyed as the action is over 3 years' old and the case has been closed. To reopen the case you will have to apply on notice on an N244 Application Form (see enclosed) and pay a fee of £50.00. You will also need to supply any documentation you have regarding this matter."
- On 3 or 4 May 2001 Mr Sivasubramaniam made an application to the court for an order for a money payment of £71, 925, together with further compensation, which he alleged was due pursuant to a judgment obtained on 13 March 1997. On the 9th May the Court Service replied:
"Your application received on 04 May 2001: the Circuit Judge has considered the file and notes that a final order dismissing the claims was made on 22 February 1999, this concluded the proceedings numbered Wt604012 and so you may not issue your proposed application variously dated 3 or 4 May 2001 in these proceedings as the subject matter of your application appears to be the same as the subject matter of the proceedings."
- On 25 June 2001 Mr Sivasubramaniam applied for permission to appeal. On 2 August 2001 the Court Service replied:
"Your application dated 25 June 2001 was referred to the Circuit Judge who was unclear as to what you are appealing since this case was dismissed in February 1999. If you wish to pursue a case against Unison then you will have to issue fresh proceedings.
Enclosed is your application along with a refund of £50.00."
- On 29 August 2001 Mr Sivasubramaniam. made a claim for permission to proceed with a claim for judicial review. This came on for an oral hearing before Hooper J. on 13 December 2001, together with a number of other similar claims in respect of decisions in county courts, including the other claim of Mr Sivasubramaniam with which we are concerned. While it did not appear clearly from Mr Sivasubramaniam's Claim Form, Hooper J. identified in the course of oral argument that the decision challenged was that in the letter of 2 August. The material grounds advanced by Mr Sivasubramaniam. for attacking the decision appear sufficiently from the concluding paragraphs of Hooper J's judgment:
"I have considerable doubts as to whether judicial review is an appropriate remedy. I shall assume for the purposes only of argument that the claimant can proceed by way of judicial review. To succeed the claimant would have to show that there was an arguable case that the judge who decided, in effect, that the application to reopen the case failed had made an error of law or reached a conclusion which no reasonable Judge could have reached. There is no such arguable case.
I note that the claimant suggests that the letter is "fictitious and not valued" because the name of the Judge is not mentioned. Indeed the claimant states that "This acts of court official fraudulent and forgery which are in fact criminal offence." Whilst accepting that it would have been better if the name of the judge had been revealed, the failure to do so could not arguably result in the decision being quashed. As to the complaint about the failure to draw up a formal court order, that is not something which could arguably lead to the decision being quashed.
For these reasons this application for permission to apply for judicial review fails."
- Mr Sales submitted to us that the Judge's doubts as to whether judicial review was appropriate were well founded, and that he should have dismissed the application on procedural grounds. We shall deal with those submissions in due course. At this point we will simply record our conclusion that quite apart from any procedural problems, this application for permission to seek judicial review was doomed to failure. There was no possible basis for criticising the decision of the Circuit Judge at Wandsworth that Mr Sivasubramaniam's proceedings against Unison could not be revived.
Proceedings in the Kingston upon Thames County Court
- These proceedings relate to a claim brought by Mr Sivasubramaniam against the Management of Guildford College of Further and Higher Education and Mr Gordon Davies, a senior technician there. The claim as originally served on 1 October 1997 had seven heads, which we will attempt to summarise: (1) wrongful dismissal; (2) fraud, in inducing him into employment by the false promise that he would become a university lecturer; (3) intimidation and humiliation by Mr Gordon Davies and an assistant of his; (4) negligence by Mr Davies in imposing too great a work load on Mr Sivasubramaniam, with the result that he suffered personal injury; (5) underpayment; (6) deliberate damage to his car, to the tune of £4,500; (7) racial discrimination.
- On 27 October 1997 District Judge Coni made an Order that heads of claim (4), (5) and (7) be struck out, that Mr Sivasubramaniam be given leave to amend his claim to £3,000 and that the matter be listed for arbitration.
- The arbitration was held on 24 February 1998 before District Judge Dimmick and Mr Sivasubramaniam's claim was dismissed. On 27 February 1998 Mr Sivasubramaniam applied to set the award aside. On 26 May and 8 June 1998, after his compulsory detention under the Mental Health Act, Mr Sivasubramaniam wrote to the court asking for the hearing of his application to be adjourned. On 25 June 1998, however, the claimant's then solicitors, Askok Patel and Co., asked to withdraw the application to set aside the award. The letter stated:
"We have been instructed by the above named client in respect of his case which we understand is being heard on the 24th August 1998 at 10.00 a.m. Our client wishes to withdraw his application as he is at present detained at the Springfield Hospital under section 3 of the Mental Health Act. Under the circumstances our client is not in a position to conduct the matter. In the light of this we look forward to receiving confirmation that the above hearing has been vacated."
That letter was sent to the defendants' solicitors asking whether they agreed to the request. There having been no reply, a judge on 24 August 1998 granted the claimant leave to withdraw the application.
- On 3 May 2001 Mr Sivasubramaniam made a far from coherent written application which was considered at an oral hearing by Judge Morgan on 11 June. Judge Morgan made sense of the application by treating it as (i) an application for permission to appeal the decision of District Judge Coni on 27 October 1997 and (ii) the restoring of the application to set aside the award of District Judge Dimmick. In entertaining these applications Judge Morgan (i) gave Mr Sivasubramaniam a generous extension of time to make the first of them and (ii) ignored the fact that Mr Sivasubramaniam's solicitors had purported to withdraw the second. Judge Morgan dismissed both applications.
- On 29 August 2001 Mr Sivasubramaniam made a claim for permission to proceed with a claim for judicial review. This was defective in a number of respects, but in the course of the oral hearing before Hooper J. on 13 December 2001 the judge identified that Mr Sivasubramaniam wished to challenge both of the decisions made by Judge Morgan. Hooper J. dismissed Mr Sivasubramaniam's application on procedural grounds. So far as the refusal of permission to appeal the decision of Judge Coni is concerned, Hooper J. ruled that as, under the statutory scheme governing appeals, there was no right of appeal against Judge Morgan's decision, it would be wrong in principle to permit the merits of his decision to be re-opened in judicial review proceedings. So far as the refusal of the application to set aside District Judge Dimmick's award is concerned, Hooper J. held that it would be wrong in principle to permit judicial review as an alternative remedy existed in the form of an application to the Court of Appeal for permission to appeal.
- Hooper J's decisions on these two points of procedure raise the issues of principle which have led the Department to intervene.
- Mr Sivasubramaniam's Appellant's Notice and accompanying documents do not make clear the nature of the appeals that he seeks permission to make to this court, but he clarified the position in the course of his oral submissions. So far as Judge Morgan's decision in relation to Judge Coni is concerned, Mr Sivasubramaniam wishes to appeal against the decision of Hooper J. Thus, in effect, he renews the application for judicial review that he made before Hooper J. So far as Judge Morgan's decision in relation to District Judge Dimmick's award is concerned, Mr Sivasubramaniam seeks to exercise the alternative remedy identified by Hooper J. That is, he seeks permission to appeal against Judge Morgan's decision.
- We can deal straight away with the latter application. Hooper J. was correct to conclude that an appeal against Judge Morgan's decision lies to this court, provided this court gives permission. What is here involved is a second appeal, and only the Court of Appeal can give permission for this – see CPR 52.13(1). Under s.55 of the Access to Justice Act 1999 no appeal will lie unless the Court of Appeal considers that 'the appeal would raise an important point of principle of practice or there is some other compelling reason' to hear it. This requirement is reproduced in CPR 52.13(2). The proposed appeal from Judge Morgan's decision not to set aside District Judge Dimmick's award raises no point of importance and there is no compelling reason to hear it. Accordingly we refuse permission to appeal. We would add that, in view of this decision, it has not been necessary to address the point that Mr Sivasubramaniam's application appears to be well out of time.
The issues of principle
- The Access to Justice Act 1999, together with rules of court made under it, has introduced a new regime for appeals in civil cases. Subject to exceptions which are not material, an appeal will lie from a decision of a District Judge to a Circuit Judge, from an original decision of a Circuit Judge to a Judge of the High Court and from a decision of the High Court to the Court of Appeal. Where an appeal is made from a District Judge to a Circuit Judge, a decision lies from the decision of the Circuit Judge to the Court of Appeal. Permission to appeal is required in all cases. This can normally be sought from the Judge who has made the decision against which it is wished to appeal ('the lower court'). Where permission has not been granted by the lower court, application for permission to appeal can always be sought from the level of Judge to whom an appeal lies ('the appeal court'). Where the appeal court refuses permission to appeal, no appeal against that refusal will lie.
- Having regard to the existence of this scheme, two issues arise.
i) If an unsuccessful party to a decision by a Circuit Judge seeks judicial review of the decision rather than pursuing the alternative remedy of an appeal to the High Court or, in the case of a second appeal, to the Court of Appeal, should that application be entertained?
ii) Where an appeal court has refused permission to appeal against a decision of the lower court and the unsuccessful party then seeks judicial review, should that application be entertained?
The legislative framework
Destination of appeals from decisions of the County Court
- The general rule in relation to appeals from decisions of a county court is set out in s.77(1) of the County Courts Act 1984, as amended, ("CCA 1984"), which states:
"Subject to the provisions of this section and the following provisions of this Part of this Act, and to any order made by the Lord Chancellor under section 56(1) of the Access to Justice Act 1999, if any party to any proceedings in a county court who is dissatisfied with the determination of the judge or jury he may appeal from it to the Court of Appeal in such manner and subject to such conditions as may be provided by Civil Procedure Rules".
- S.56(1) of the Access to Justice Act 1999 ("AJA") provides that the Lord Chancellor may by order provide that appeals which would otherwise lie to, inter alia, the Court of Appeal, shall lie instead to the County Court or the High Court. The Access to Justice Act 1999 (Destination of Appeals) Order 2000 (S.I. 2000 No. 1071) (which came into force on 2 May 2000) was made under this power and the general rule therefore has effect subject to the provisions of the Order. In relation to appeals from a County Court the Order provides that:
i) subject to two exceptions, an appeal from a decision of a County Court shall not go according to the general rule but shall go to the High Court (Art.3(1));
ii) subject to the same exceptions, where the decision to be appealed is a decision made by a District Judge, the appeal shall go a Judge of the County Court (Art.3(2));
iii) the exceptions are
a) where the decision is a final decision made in a claim allocated to the multi-track under the Civil Procedure Rules or in certain specialist claims (such as mercantile claims) (Art.4) and
b) where the decision itself was a decision made on appeal (other than the decision of an officer of the court authorised to assess costs) (Art.5);
iv) in this context, "decision" includes any judgment, order or direction (Art.1(2)).
The permission requirement
S.54 of the Access to Justice Act 1999
- S.54 AJA 1999 allows for the extension of the permission requirement, previously in place under s.18(1A) of the Supreme Court Act 1981 (now repealed by Part III of Schedule 15 AJA 1999) in respect of most appeals to the Court of Appeal, to all appeals to the County Court and High Court (as well as to the Court of Appeal). S.54 provides as follows:
"(1) Rules of court may provide that any right of appeal to –
(a) a County Court;
(b) the High Court;
(c) the Court of Appeal,
may be exercised only with permission.
(2) This section does not apply to a right of appeal in a criminal cause or matter.
(3) For the purposes of subsection (1) rules of court may make provision as to-
(a) the classes of case in which a right of appeal may be exercised only with permission,
(b) the court or courts which may give permission for the purposes of this section,
(c) any considerations to be taken into account in deciding whether permission should be given, and
(d) any requirements to be satisfied before permission may be given,
and may make provision for different circumstances.
(4) No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).
(5) For the purposes of this section a right to make an application to have a case stated for the opinion of the High Court constitutes a right of appeal.
(6) For the purposes of this section a right of appeal to the Court of Appeal includes –
(a) the right to make an application for a new trial;
(b) the right to make an application to set aside a verdict, finding or judgment in any cause or matter in the High Court which has been tried, or in which any issue has been tried, by a jury."
Part 52 of the Civil Procedure Rules 1998
- In accordance with s.54, rule 3 of Part 52 of the Civil Procedure Rules 1998 (CPR 52.3) provides as follows:
"(1) An appellant or respondent requires permission to appeal –
(a) where the appeal is from a decision of a Judge in a County Court or the High Court, except where the appeal is against –
(i) a committal order;
(ii) a refusal to grant habeas corpus; or
(iii) a secure accommodation order made under section 2 of the Children Act 1989; or
(b) as provided by the relevant practice direction.
(Other enactments may provide that permission is required for particular appeals.)
(2) An application for permission to appeal may be made-
(a) to the lower court at the hearing at which the decision to be appealed was made; or
(b) to the appeal court in an appeal notice.
(3) Where the lower court refuses an application for permission to appeal, a further application for permission to appeal may be made to the appeal court.
(4) Where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing.
(5) A request under paragraph (4) must be filed within 7 days after service of the notice that permission has been refused.
(6) Permission to appeal will only be given where-
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard.
(7) An order giving permission may –
(a) limit the issues to be heard; and
(b) be made subject to conditions."
- Rule 52.1(3)(c) defines "lower court" as the court, tribunal or other person from whose decision an appeal is brought, and "appeal court" as the court to which an appeal is made.
- In relation to decisions of the County Court, the Practice Direction to Part 52 provides, consistently with Art.3 of the Access to Justice (Destination of Appeals) Order 2000, that (1) appeals from decisions of a District Judge lie to a Circuit Judge and (2) appeals from decisions of a Circuit Judge lie to a High Court Judge (52PD, para. 2A.1), save that (3) an application for permission to appeal from a decision of the County Court which was itself made on appeal must be made to the Court of Appeal (52PD, para. 4.9).
- Rule 52.13 provides:
"(1) Permission is required from the Court of Appeal for any appeal to that court from a decision of a County Court or the High Court which was itself made on appeal.
(2) The Court of Appeal will not give permission unless it considers that:
(a) the appeal would raise an important point of principle or practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it."
The legislative purpose of restricting the right of appeal
- The new regime, extending the requirement of permission to appeal so that it became almost universal, was a response to the Bowman Report, made to the Lord Chancellor in September 1997 by way of a Review of the Court of Appeal (Civil Division). The following conclusions of that Report are of relevance:
"Before exploring the two remaining avenues in detail, we considered what principles should underlie a civil appeals system (Chapter 2). We confirmed that the principles identified by Lord Woolf as those which the civil justice system should meet in order to ensure access to justice were fully applicable to appeals and we have sought to reflect them in our recommendations. We also considered the question whether there should be a right of appeal in civil cases. Our conclusion is that any dissatisfied party is entitled to have their case looked at by a higher court so that it can consider whether there appears to have been an injustice. In that event, it will allow an appeal to proceed but the appeal system should not be seen as an automatic further stage in a case.
The purpose of an appeals system, in our view, is not simply to correct wrong decisions as far as they concern the parties to the dispute; there is also a public purpose which is to ensure confidence in the administration of justice and, in appropriate cases, to clarify the law, practice and procedures and to help maintain the standards of first instance courts and tribunals.
The application of the Woolf principles led us to the conclusion that more than one level of appeal cannot normally be justified. In addition, we concluded that certain appeals which now reach the CA should normally be heard at a lower level provided that they are heard by a court or judge with a superior jurisdiction to that which made the first instance decision. Such appeals could reach the CA, however, where there is an important point of principle or practice or one which for some other special reason should be considered by the CA."
The submission of the Lord Chancellor's Department
- Mr Sales submitted that the course taken by Mr Sivasubramaniam in seeking legislative review of the decisions taken by the Circuit Judges was in conflict with the judicial policy underlying s.54 of the 1999 Act. Insofar as Mr Sivasubramaniam had not sought permission to appeal to a higher court, his application for permission to claim judicial review should have been rejected on the ground that he had not exhausted all alternative remedies. Hooper J. had correctly dismissed the application that related to District Judge Dimmick's award on this ground. He should have dismissed the application to seek judicial review of the decision of the Wandsworth County Court on the same basis. So far as the application relating to the decision of District Judge Coni is concerned, permission to appeal had been refused by the appropriate appeal court. Mr Sivasubramaniam had reached the end of the road so far as his statutory right of appeal was concerned. In relation to this situation Mr Sales made two alternative submissions: (1) s.54(4) of the 1999 Act implicitly ousted the jurisdiction of the Administrative Court to review the decision of Judge Morgan; alternatively (2) as a matter of judicial discretion such an application for permission to seek judicial review should be refused as such review was in conflict with legislative policy
- Before we consider these submissions, we propose to review the history of judicial review of decisions of the County Court, with particular reference to legislative attempts to remove or curtail this jurisdiction.
Judicial Review and the County Court
- The County Court is an inferior court created by statute. The High Court has always asserted jurisdiction to review the question of whether the County Court has acted within its jurisdiction. Thus in R v His Honour Judge Sir Shirley Worthington-Evans, Clerkenwell County Court ex parte Madan and another  2 All ER 457 at p.459, Donovan J., when delivering the judgment of the Divisional Court stated:
"I am satisfied that in a proper case this court has power by order of certiorari to bring up and quash the order of the county court judge made without jurisdiction in that behalf (see Kemp v. Balne (1) (1844), 1 Dow. & L. 885; and Colonial Bank of Australasia v. Willan (2) (1874), L.R. 5 P.C. 417 at pp. 442 and 450)."
- While the jurisdiction judicially to review decisions of the County Court has not been in doubt, it has been rarely exercised. In recent times this is no doubt because a more satisfactory alternative remedy has existed in the form of an appeal to the Court of Appeal. Where judicial review has been granted, this has almost always been on the ground of clear want of jurisdiction of the type required to found judicial review before Anisminic Ltd v Foreign Compensation Commission  2 AC 147. On several occasions this has taken the form of an Order made by consent which the court had no jurisdiction to make by reason of provisions of the Rent Act 1977 – see, for example, R v Bloomsbury and Marylebone County Court ex parte Blackburne (1984) 14 HLR 56.
- An exceptional case was R v Keighly County Court ex parte Home Insulation Ltd  COD 174. Judge Pickles had declined to order that an application to set aside an award that he had made in a small claim arbitration should be heard by a Judge other than himself. This decision was quashed on judicial review on the ground that for justice to be done and to be seen to be done fairly it was essential that the application should be heard by a Judge who would approach the matter with a fresh mind.
- There is a long and strong line of judicial authority that has held ineffective statutory provisions purporting to oust judicial review where the challenge is to the jurisdiction and this has extended to judicial review of decisions of the County Court. Thus in R v His Honour Judge Sir Donald Hurst, ex parte Smith  2 All ER 385 a County Court Judge had directed the removal from the electoral register the names of a number of persons who were not party to the proceedings before him. Motions were brought in the Divisional Court for an order of certiorari to quash his directions. The issue arose as to whether there was jurisdiction to do so, having regard to s.107 of the County Courts Act 1959 which provided:
"Subject to the provisions of any other Act relating to county courts, no judgment or order of any judge of county courts, nor any appeal proceedings brought before him or pending in his court, shall be removed by appeal, motion, certiorari or otherwise into any other court whatever, except in the manner and according to the provisions of this Act mentioned."
- Giving the leading judgment, Lord Parker CJ held:
"The leading case on the matter is Ex p. Bradlaugh (1878), 3 QBD 509, where Mellor, J., put the principle in these words (1878), 3 Q.B.D. at p.513:
'It is well established that the provision taking away the certiorari does not apply where there was an absence of jurisdiction. The consequence of holding otherwise would be that a metropolitan magistrate could make any order he pleased without question.'
To the same effect is a number of cases including, coming to quite recent times, R. v. Worthington-Evans, Ex p. Madan  2 Q.B. at p.152 and Re Gilmore's Application  1 Q.B. at p.588. I am quite satisfied that certiorari will lie against a county court judge if he has acted without jurisdiction, notwithstanding the sections of the County Courts Act, 1959, to which I have referred."
- In this case, as in most of the other examples of judicial review of decisions of the County Court, the want of jurisdiction was apparent from factors external to the reasons given by the court for making the order challenged. This was not true, however, of the decision of the Court of Appeal in Pearlman v Keepers and Governors of Harrow School  QB 56. At issue in that case was the decision of a county court judge regarding the interpretation of the phrase "structural alteration" in the Housing Act 1974. Paragraph 2 (2) of Schedule 8 to that Act provided that the determination of the county court judge "shall be final and conclusive," and section 107 of the County Courts Act 1959 applied.
- In these circumstances the Divisional Court held that judicial review was not open. The Court of Appeal, by a majority, reversed this decision, building on the reasoning in Anisminic. Lord Denning MR said at pp.69-70:
"… the distinction between an error which entails absence of jurisdiction - and an error made within the jurisdiction - is very fine. So fine indeed that it is rapidly being eroded. Take this very case. … [The judge's] error can be described on the one hand as an error which went to his jurisdiction. … By holding that it was not a 'structural alteration … or addition' he deprived himself of jurisdiction to determine those matters. On the other hand, … it can plausibly be said that he had jurisdiction to inquire into the meaning of the words … and that his wrong interpretation of them was only an error within his jurisdiction, and not an error taking him outside it. … I would suggest that this distinction should now be discarded. The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. … The way to get things right is to hold thus: no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it. … I am of opinion that certiorari lies to quash the determination of the judge, even though it was made by statute 'final and conclusive.'"
- In a powerful dissent, Geoffrey Lane LJ observed at p.76:
"The judge is considering the words … which he ought to consider. He is not embarking on some unauthorised or extraneous or irrelevant exercise. All that he has done is to come to what appears to this court to be a wrong conclusion upon a difficult question. It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a wrong decision on a point of law. Accordingly, I take the view that no form of certiorari is available to the tenant."
- In In re Racal Communications Ltd  AC 374 Lord Diplock, with whose speech Lord Keith of Kinkel agreed, and Lord Edmund-Davies expressed the view that Pearlman was wrongly decided. At p.383, Lord Diplock summarised the effect of Anisminic as follows:
"….as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity."
Lord Diplock went on to suggest, however, that the reasoning in Anisminic did not apply where the decision sought to be reviewed was that of a court of law:
"But there is no similar presumption that where a decision-making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic  2 AC 147; but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law, fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide."
- Insofar as Lord Diplock was suggesting that there was no presumption that an ouster provision did not mean what it said when applied to a court of law, his comments have received subsequent judicial approval. They have not, however, been treated as authority for the proposition that judicial review of a court will not lie where the court has made an error of law – see the discussion at paragraphs 5-036 and 5-037 of the 5th edition of De Smith, Woolf and Jowell on Judicial Review of Administrative Action.
- Mr Sales founded on Lord Diplock's comments in Racal in urging us that the general presumption against ouster of judicial review should not be applied on the facts of this case. He submitted that it was clearly implicit in the provision of s.54(4) of the 1999 Act that the decision of an appeal court refusing leave to appeal was not susceptible to challenge by judicial review. The express provision that there should be no appeal from such a decision would be rendered nugatory if it could be challenged by judicial review. The object of conserving judicial resources would be frustrated if refusal of permission to appeal could be met with an application for judicial review to the High Court, which could be renewed before the Court of Appeal if unsuccessful. S.54(4) should be read so as to treat an application for permission to claim judicial review as an appeal. Both were prohibited.
- We have not been persuaded by these submissions. Nearly 50 years ago Denning LJ stated in R v Medical Appeal Tribunal ex parte Gilmore  1 QB 574 at p.585 that 'the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words'. All the authorities to which we have been referred indicate that this remains true today. The weight of authority makes it impossible to accept that the jurisdiction to subject a decision to judicial review can be removed by statutory implication. Accordingly we reject Mr Sales' submission that s.54(4) of the 1999 Act ousts the jurisdiction of the High Court to subject to judicial review the decision of the County Court to refuse (or to grant) permission to appeal.
- We turn to Mr Sales' alternative submission that whether an applicant has failed to seek permission to appeal from a decision of the County Court, or has sought permission and had it refused, the High Court should refuse permission to claim judicial review as a matter of principle. We shall deal with each situation in turn.
Failure to seek permission to appeal.
- Mr Sales argued that permission to claim judicial review of a decision of a County Court should not be granted where the possibility of an appeal to a higher court pursuant to provisions of statute remains open. He so submitted both as a general proposition and in reliance upon the 1999 Act, and the legislative policy behind it. He submitted that there is an abundance of authority for the proposition that permission to claim judicial review should not be granted when a suitable alternative remedy is available.
- There is indeed an abundance of authority, which supports Mr Sales' submission. This can be demonstrated by reference to that which he cited to us:
Harley Development Inc v Comr of Inland Revenue  1 WLR 727, 736C per Lord Jauncey; R v Inland Revenue Comrs, ex p. Preston  AC 835, 852D-F per Lord Scarman, and 862D and F per Lord Templeman; R v Secretary of State for the Home Department, ex p. Swati  1 WLR 477; R v Birmingham CC, ex p. Ferrero Ltd  1 All ER 530, 537c per Taylor LJ; Allen v W. Yorkshire Probation Service  EWHC Admin 2.
What these authorities show is that judicial review is customarily refused as an exercise of judicial discretion where an alternative remedy is available. Where Parliament has provided a statutory appeal procedure it will rarely be appropriate to grant permission for judicial review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused.
- We believe that these general principles apply with particular force in the context of the applications before us. Under the 1999 Act, and the rules pursuant to it, a coherent statutory scheme has been set up governing appeals at all levels short of the House of Lords. One object of the scheme is to ensure that, where there is an arguable ground for challenging a decision of the lower court, an appeal will lie, but to prevent court resources being wasted by the pursuit of appeals which have no prospect of success. The other object of the scheme is to ensure that the level of Judge dealing with the application for permission to appeal, and the appeal if permission is given, is appropriate to the dispute. This is a sensible scheme which accords with the object of access to justice and the Woolf reforms. It has the merit of proportionality. To admit an applicant to by-pass the scheme by pursuing a claim for judicial review before a judge of the Administrative Court is to defeat the object of the exercise. We believe that this should not be permitted unless there are exceptional circumstances – and we find it hard to envisage what these could be. Hooper J. was right to dismiss Mr Sivasubramaniam's application in relation to District Judge Dimmick's award on the ground that he had an alternative remedy. He should have dismissed Mr Sivasubramaniam's application in relation to the Wandsworth County Court for the same reason rather than entering into consideration of the merits.
The position where the appeal court has refused permission to appeal
- Mr Sales urged us to make it plain, as a matter or principle, that when a litigant reaches the end of the road by reason of the refusal of the appeal court to grant permission to appeal, an application for permission to claim judicial review should be refused, subject to exceptional circumstances, the nature of which we shall consider in due course. Judges had established the general principle that permission to claim judicial review should not be granted where a suitable alternative remedy existed. This demonstrated, so Mr Sales submitted, that it was open to the Judges to lay down principles governing the circumstances in which permission to claim judicial review should be refused. Thus there was no reason why we should not lay down the principle for which he contended if we thought it sound.
- Mr Sales was not able to place before us any direct precedent for the principle that he wishes us to lay down. Indeed, he very properly drew our attention to a somewhat analogous situation where that principle has not been applied. Permission to claim judicial review is regularly given in relation to refusals by the Immigration Appeal Tribunal ('the Tribunal') of permission to appeal to the Tribunal against decisions of special adjudicators. An appeal to the Tribunal from a decision of a special adjudicator lies only if the Tribunal gives leave to appeal – see rules 18 and 19 of the Immigration and Asylum Appeals (Procedure Rules) 2000 which replaced similar provisions in rule 14 of the Immigration Appeals (Procedure) Rules 1984. Mr Sales told us that he was unaware of any case in which the practice of permitting judicial review of decisions of the Tribunal refusing leave to appeal has been challenged as inappropriate.
- On the face of it, judicial review of such a decision might seem anomalous. In Robinson v Secretary of State for the Home Department  Imm AR 568 the Court of Appeal declined to give general guidance to the Tribunal as to the criteria that it should apply when deciding whether to give leave to appeal. The court did, however, indicate that a higher hurdle than mere arguability had to be crossed. If the Tribunal errs in its evaluation of the prospects of success of an appeal as a result of an error of law which is apparent from its reasons, permission to claim judicial review may be granted. In reality, the application for permission to claim judicial review comes close to being a renewed application for permission to appeal to the Tribunal. The Tribunal has the qualities of a court – certainly to the extent of satisfying the requirements of Article 6 of the European Convention on Human Rights. If judicial review of refusal of permission to appeal by the Tribunal is appropriate, is there any basis on which it can be ruled out of court where the challenge is to the refusal of permission to appeal by a Judge of the County Court?
- There are, in our judgment, special factors which fully justify the practice of entertaining applications for permission to claim judicial review of refusals of leave to appeal by the Tribunal. In asylum cases, and most cases are asylum cases, fundamental human rights are in play, often including the right to life and the right not to be subjected to torture. The number of applications for asylum is enormous, the pressure on the Tribunals immense and the consequences of error considerable. The most anxious scrutiny of individual cases is called for and review by a High Court Judge is a reasonable, if not an essential, ingredient in that scrutiny.
- The same cannot be said in relation to decisions of District Judges in respect of which appeals lie, if permission is given, to a Circuit Judge. There is a right to seek permission to appeal against such decisions, and to renew the application at an oral hearing if it is refused on paper. The decision challenged will, in this way, be open to review by a Judge. That review can consider any challenge that is made to the jurisdiction of the Judge below. It can also consider the merits of any attack that may be made on the conclusions of the Judge below in relation to any matter, be it fact, law or the basis upon which a discretion has been exercised. If grounds for appeal are held to exist, a full appeal will follow.
- This scheme we consider provides the litigant with fair, adequate and proportionate protection against the risk that the Judge of the lower court may have acted without jurisdiction or fallen into error. The substantive issue will have been considered by a Judge of a court at two levels. On what basis can it be argued that the decision of the Judge of the appeal court should be open to further judicial review? The answer, as a matter of jurisprudential theory is that the Judge in question has limited statutory jurisdiction and that it must be open to the High Court to review whether that jurisdiction has been exceeded. But the possibility that a Circuit Judge may exceed his jurisdiction, in the narrow pre Anisminic sense, where that jurisdiction is the statutory power to determine an application for permission to appeal from the decision of a District Judge, is patently unlikely. In such circumstances an application for judicial review is likely to be founded on the assertion by the litigant that the Circuit Judge was wrong to conclude that the attack on the decision of the District Judge was without merit. The attack is likely to be misconceived, as exemplified by the cases before us. We do not consider that Judges of the Administrative Court should be required to devote time to considering applications for permission to claim judicial review on grounds such as these. They should dismiss them summarily in the exercise of their discretion. The ground for so doing is that Parliament has put in place an adequate system for the reviewing the merits of decisions made by District Judges and it is not appropriate that there should be further review of these by the High Court. This, we believe, reflects the intention of Parliament when enacting s.54 (4) of the 1999 Act. While Parliament did not legislate to remove the jurisdiction of the High Court judicially to review decisions of County Court judges to grant or refuse permission to appeal, we do not believe that Parliament can have anticipated the spate of applications for judicial review that s.54 (4) appears to have spawned.
- Everything that we have said should be applied equally to an application for permission to claim judicial review of the decision of a Judge of the County Court granting permission to appeal. We are not aware that such an application has yet been made.
- The possibility remains that there may be very rare cases where a litigant challenges the jurisdiction of a Circuit Judge giving or refusing permission to appeal on the ground of jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant's right to a fair hearing. If such grounds are made out we consider that a proper case for judicial review will have been established.
- For the reasons that we have given, these applications will be dismissed.
Order: Appeal dismissed.
(Order does not form part of the approved judgment)
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