TRANSFER FROM COUNTY COURT TO HIGH COURT: YOU CAN ASK FOR THIS ONLY ONCE: A DISCRETION TO BE EXERCISED “WITH GREAT CIRCUMSPECTION”

In Bass v Ministry of Defence [2018] EWHC 1297 (QB) Master Davison held it was an abuse of process for a party to make  an application to transfer to the High Court when a similar application had been made, and refused, by the County Court. The Master also held that the fact that a case concerned public interest immunity issues was not, in itself, grounds for transfer to the High Court.

THE CASE

The application concerned two separate, but related, cases concerning two soldiers bringing actions against the MOD for failing to provide appropriate prophylactic treatment for soldiers in Afghanistan.  Proceedings were issued in the county court, one was in an advanced stage.

THE APPLICATION TO TRANSFER TO THE HIGH COURT

In one of the cases the claimant issued an application to transfer to the High Court. This was refused by the District Judge. The claimant lodged an appeal against the refusal to transfer. Both claimants then made an application to the High Court Master. The appeal in the county court was stayed pending the application being made to the High Court for tranfser.

THE MASTER’S DECISION:  A DECISION TO BE MADE WITH GREAT CIRCUMSPECTION

  1. Self-evidently, it is not open to a litigant whose application has been unsuccessful to challenge that outcome by issuing the same application before a different judge. His remedy is to appeal. However, Mr Huckle QC was correct to point out that sections 41 and 42 of the CCA 1984 are separate sections conferring separate jurisdictions and section 41 (the section governing applications to the High Court) specifically states that an application can be made “at any stage in proceedings”. Mr Huckle QC was also correct to point out that the High Court exercises a broadly supervisory jurisdiction over the County Court. On the face of it therefore (and perhaps surprisingly) it seems to me that it is open to Mr Taylor to pursue this application and that, strictly speaking, it is not an abuse of the process for him to do so. But the matter does not rest there. The application does precisely replicate the application that was before DJ Fine and there is no change in circumstances. Although it seems to me that I do have the jurisdiction to entertain the application, it is a jurisdiction which I would, in these circumstances, exercise with great circumspection.
  2. There are two reasons for that. The first is the obvious importance of maintaining proper comity and respect between the judges of this court and judges of the Central London County Court. I have no jurisdiction to review or interfere with the decision made by DJ Fine. But that would nevertheless be the practical result of my acceding to the application. The District Judge would justifiably be surprised if I were to do so. The second is that so far as the discretionary grounds for transfer relied upon in this case are concerned DJ Fine and, in due course, HHJ Dight OBE are better placed than me to make and/or to review the decision, (which is a case management decision). The factors to be considered under CPR r 30.3(2) include the convenience of the court for the parties, the value of the claim, the complexity of the issues and the availability of judges with appropriate expertise. All these (and particularly the latter) are matters that the court actually seised of the case will usually be able to assess better than the High Court. Absent some change of circumstances or some factor which I am aware of but which the County Court was not, it is not for me to interfere with DJ Fine’s decision. I would only do so if I thought that the decision was clearly and obviously wrong. To put it another way, it seems to me that I must take the same approach or an even stricter approach than that which an appellate court would take to a case management decision. (Once again, I emphasise that I am not sitting as an appellate court and that I refer to the practice of the appellate courts only because it is a useful analogy.) Appeals from such decisions are discouraged because they have the potential to disrupt the orderly progress of a case to its conclusion and because of the very nature of case management decisions. The judges entrusted with case management decisions must exercise a high degree of judicial discretion. That in turn implies that the bar is set high for another court to justify interfering with those decisions. Applying that approach, and subject only to the point that arises on CPR r 30.3(3), my view is that the application in Mr Taylor’s case, though not technically an abuse, should be dismissed as a mere replication of the application which DJ Fine has already refused – a decision which was within her judicial discretion and which she was entitled to make.
  3. Although I have a free hand in Mr Bass’s case, it is clear that his case stands and falls with that of Mr Taylor. So (again subject to the CPR r 30.3(3) point) I decline to adjudicate on his application. Plainly, DJ Fine would have made the same order in his case. Equally plainly, in the event that HHJ Dight OBE sets aside her order in Mr Taylor’s case and transfers it to the High Court, then the same will apply to Mr Bass’s case.

 

THE CLAIMANTS’ ALTERNATIVE APPLICATION

The claimants argued that the fact that the MOD had issued Public Immunity Certificates and there was the possibility of  Closed Material Procedure meant the action should be transferred. This argument was not accepted by the Master.

  1.  I have come to the conclusion that CPR r 30.3(3) does not mandate transfer to the High Court unless and until there is to be a Closed Material Procedure under section 6 of the JSA 2013. That is not, or certainly not yet, the case here. The rule is not an obstacle to a judge of the County Court hearing or determining a PII application, even where the claim to PII is based upon national security grounds. If a PII application is particularly heavy and complex or if the national security issues raised by the application are of unusual sensitivity, then it remains open to the judge to make a discretionary transfer of the case to the High Court under CPR r 30.2. In such a case, any views about transfer expressed by the arm of the state that is seeking Public Interest Immunity would be entitled to careful consideration.
  2. I have not overlooked the fact that Mr Huckle QC’s fallback position was that if I was against him on the question of mandatory transfer under CPR r 30.3(3) then this was still a case for discretionary transfer under r 30.2 on the grounds that the intended PII application concerned national security. As indicated in the preceding paragraph, this is a question to be decided according to the gravity, difficulty and sensitivity of the issues so raised. I accept that there might be cases where an application on these grounds could be made directly to the High Court under section 41. But such cases will be rare and, on present information, these claims are not amongst them. The documents which the Ministry of Defence seeks to redact in these claims are few in number and the redactions themselves are not extensive. The Ministry does not seek a transfer. The PII applications seem to me to be suitable to be dealt with in the County Court.