JUDICIALLY REVIEWING THE COUNTY COURT: PROCEDURAL CONFUSION, UNPLEADED POINTS AND THE HIGH STANDARD TO BE MET WHEN ATTEMPTING TO JUDICIALLY REVIEW A COUNTY COURT DECISION

There are many matters of interest in the short judgment of Mr Justice Turner in Watkins, R (On the Application Of) v Newcastle Upon Tyne County Court [2018] EWHC 1029, a rare example of a party trying to judicially review a County Court decision.

“A thread of procedural confusion runs through the procedural history of this matter”

KEY POINTS

There are a number of procedural matters here that the judge commented upon.

  • The defendant (in the original application) applying for an adjournment and being refused, only for the case to be adjourned anyway for lack of court time.
  • A party attempting to run a case that was never pleaded.
  • The Deputy District Judge deciding that the unpleaded issue could not be heard but giving a decision on it anyway (the right decision as it turns out).
  • The very rigorous and onus test a party has to meet to judicially review a county court decision.
  • An applicant for judicial review simply failing to turn up at that application.

THE JUDGMENT

    1. The applicant lives at [an address], Hendon, Sunderland which is one of a number of dwellings in a building operated as almshouses by the interested party, the Aged Merchant Seamen’s Homes (“the Charity”). The applicant has lived there for over 18 months under terms contained in a letter of appointment dated 15 August 2016.
    2. As long ago as 26 January 2017 the Charity served the applicant with a notice to quit alleging that she had been in breach of the terms of the letter of appointment.
    3. The applicant refused to give up possession and the case thereafter proceeded at a depressingly slow pace. The matter was originally listed for trial on 8 September 2017. The applicant applied unsuccessfully for an adjournment on that day but, as it turned out, the case did not, in any event, get on through lack of court time.
    4. The matter was relisted to be heard on 30 October 2017 and the applicant, again, applied unsuccessfully for an adjournment.
    5. The central issues to be tried were as to whether the applicant had been in breach of the terms of the letter and, if so, whether any such breaches were such as to entitle the Charity to seek possession of the flat.
    6. However, the applicant’s counsel, Mr Nicholas Grundy QC, in his written opening introduced, for the first time, the argument that the letter of appointment amounted to the granting of a lease and not a licence thereby affording his client an additional ground upon which to resist the claim for a possession order. The Charity objected to the late introduction of this argument because it was unheralded in the pleadings. The parties would appear to have limited their submissions to the issue as to whether the argument should be entertained rather than whether, if entertained, it had substantive merit.
    7. The District Judge then reserved judgment which he thereafter proceeded to hand down on 17 November 2017. On the issue as to whether the applicant occupied the flat under a tenancy or a licence the District Judge proceeded to reviewed the documentary and other evidence and applied the approach laid down in Stewart v Watts [2017] 2 WLR 1107 in which the Court of Appeal gave detailed guidance specifically relevant to cases involving almshouses. His conclusion was that the applicant was a licensee and not a tenant and, having resolved all other issues against her, he made an order for possession.
    8. This prompted counsel for the charity to ventilate her concern that she had assumed that the District Judge had decided not to deal with the substantive merits of the tenancy point and that his reserved judgment on this issue would be dealing only with giving reasons for refusing to deal with it. She invited him to give further reasons.
    9. The District Judge responded to this invitation cryptically. He observed that the matter ought to have been pleaded well in advance and that he had to bear this in mind when applying the overriding objective. One might expect that he would then confirm either that he had determined the issue or he had not. Instead, he said that it “was not appropriate then for that issue to be considered in any detail.”
    10. The applicant then sought permission to appeal. Her application, again articulated by leading counsel on her behalf, was heard by His Honour Judge Kramer on 8 March 2018. He refused permission not on the ground that the District Judge had got the law wrong but because the issue, not having been pleaded in the first place, was not one upon which the applicant could found an argument on appeal. He was critical of the District Judge who he found had muddled the issue.
    11. The date set for the execution of the warrant of possession was 10 April 2018 but, at the eleventh hour, the applicant brought judicial review proceedings against the Newcastle County Court.
    12. The application for permission judicially to review the decision of His Honour Judge Kramer was considered on the papers and refused by Jeremy Baker J on 13 April 2018. He concluded that in order for the applicant to succeed she would have to show that the District Judge’s decision on the substantive tenancy issue was wrong. Having read that judgment, he concluded that there were no arguable grounds.
    13. A thread of procedural confusion runs through the procedural history of this matter. It would have been preferable if the District Judge had more clearly articulated that he was intending to consider, and had determined, the substantive merits of the tenancy issue. Having said that, he did say that “in delivering judgment it seemed appropriate to address matters as to whether the defendant is a licensee or a tenant and I have found that she is a licensee and not a tenant.”
    14. His Honour Judge Kramer was understandably concerned that no amendment had been permitted to include the tenancy argument and so the paragraphs in the District Judge’s judgment relating to this aspect of the case did not refer to “a live issue”.
    15. Jeremy Baker J took a slightly different approach assuming, at least for the sake of argument, that the District Judge had substantively resolved the tenancy argument but that he had done so by applying the law correctly and coming to the right conclusion.
    16. The matter now comes before this court on a renewed application for permission to challenge the decision of His Honour Judge Kramer by way of judicial review.
    17. The proper approach to such challenges are helpfully set out in The Queen on the Application of Oluwole Ogunbiyi v Southend County Court v Lombard North Central plc in which Jay J observed:
“26 I remind myself of the principles governing an application for judicial review of this nature. This court axiomatically is not exercising an appellate jurisdiction, it is in fact exercising a highly attenuated review jurisdiction. The courts have explained, on a number of occasions, the extremely restricted exercise that may be undertaken in cases of this sort, namely cases involving judicial decisions made by County Courts.
27 The leading cases in this area are R (on the application of Mahon) v Taunton County Court [2001] EWHC (Admin) 1078R (on the application of Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475Gregory v Turner [2003] 1 WLR 1149R (on the application of Strickson) v Preston County Court [2007] EWCA Civ 1132 and R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin).
28 In my view it is unnecessary to set out all the relevant citations, but I refer to just two of these for present purposes. At paragraph 32 of his judgment in Strickson Laws LJ said this:

“How should such a defect be described in principle? I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both), and a case where, as I would venture to put it, the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case. It will or may include the case of pre-Anisminic jurisdictional error, where the court embarks upon an enquiry which it lacks all power to deal with, or fails altogether to enquire or adjudicate upon a matter which it was its unequivocal duty to address. It would include substantial denial of the right to a fair hearing, and it may include cases where the lower court has indeed acted “in complete disregard of its duties” (Gregory), and cases where the court has declined to go into a point of law in a particular area which, against a background of conflicting decisions of a lower tribunal, the public interest obviously requires to be decided (Sinclair). The Sinclair type of case is perhaps a sub-class of the Gregory case. Both, in any event, may be less hard-edged than the pure pre-Anisminic jurisdictional error case. The courts will have to be vigilant to see that only truly exceptional cases — where there has indeed, as I have put it, been a frustration or corruption of the very judicial process — are allowed to proceed to judicial review in cases where further appeal rights are barred by section 54(4).”

In Cart Laws LJ sought to clarify what he had said in Strickson. At paragraph 99 of his judgment he said this:

“I hope it is clear from the context that the reference there to a ‘substantial denial of the right to a fair hearing’ was intended only to denote the case where there has been a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal.”

29 Having regard to these authorities, the hurdles surmounting the claimant today are formidable. This is not enough to demonstrate that the Circuit Judge got it “extremely wrong”. In order to succeed on this application the claimant has to demonstrate something truly egregious or outrageous as to amount to a complete abrogation of the judicial process in the context of the right to a fair trial.”
  1. In applying this test to the decision of His Honour Judge Kramer it is abundantly plain that the legal threshold permitting a challenge to his decision could never be surmounted. He was arguably right to conclude that the tenancy issue was not open to appeal because it never fell within the pleaded parameters of the matters which the District Judge had been called upon to determine. But even if he were wrong, I am bound to say that I share the view expressed by Jeremy Baker J that the reasons given by the District judge were correct on the tenancy point and his conclusion was one which he was entitled to reach. Whichever perspective is taken, it is clear that there has been no wholly exceptional collapse of fair procedure in this case consequent upon the refusal of permission to appeal. Accordingly this application for permission to challenge the decision by way of judicial review is refused.
  2. I note that the applicant did not attend this hearing. She sent an email yesterday to say that she did not intend to come. She said that her reasons would be sent out in further correspondence. She did not ask for the hearing to be adjourned. In these circumstances, I concluded that it was fair and just to proceed in her absence. I consider that it is unlikely that a hearing of a renewed application for permission could be classed as a trial so as to engage the power of the court under CPR 39(3) to proceed with a trial in the absence of a party. Nevertheless, as Lord Morris of Borth-y-Gest observed in Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301 a court which “is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.”
  3. I have no hesitation in finding that the power to proceed in the absence of a party to a renewed permission hearing, where the application of the overriding objective so requires, is necessary to enable it to act effectively.