High Test for Judicial Review of Refusal of Permission to Appeal  

Sharing, R (on the application of) v Preston County Court [2012] EWHC 515 (Admin) (22 February 2012)

Analysis

The Administrative Court quashed a refusal to grant permission to appeal in a case where the claimant sought damages for unlawful eviction and breach of the covenant of quiet enjoyment and trespass. The County Court’s refusal to grant permission was quashed on the grounds of apparent bias in the way the judge conducted the hearing.

Background to Case

At issue was whether the landlord, who represented himself, had repeatedly entered the claimant’s flat without her consent to demand rent. The claimant said the landlord had broken in on the evening she had left the property by breaking off the door bolt - an allegation denied by the landlord. The trial judge dismissed her claim on the facts and said neither party was credible. Post-trial, evidence came to light that there were admissions by the landlord to a police officer that he had in fact broken the bolt, on the basis he was entitled to in order to demand unpaid rent. This, in effect, constituted an admission of liability and undermined a neighbour’s evidence given at trial that she had been present and he had not broken in which was revealed to be false.

The claimant’s application for permission to appeal, supported by this fresh evidence from the police officer, was refused and she applied for judicial review (under s 54(4) of the Access to Justice Act 1999 there is no right of appeal against a refusal of permission) arguing that she had been denied a fair hearing.

As James Stark explains: “The Court of Appeal has held that judicial review is not ousted by that provision but that it is available only in extremely limited circumstances, not on the traditional basis of error of law, but only when the judicial process has been frustrated or corrupted. This includes failures to enquire upon something that was his duty to enquire upon or bias in the conduct of the hearing. The curtailing of any right of further appeal rules out grounds for judicial review arising just because the judge was wrong - or even extremely wrong.”

The issue relevant to the judicial review application was the attempt to admit the officer’s statement as fresh evidence. Stark says the judge was extremely dismissive of that application and did not apply the test set out in CPR 52.11(2), repeatedly stating that the claimant’s case had been destroyed by the neighbour’s evidence without apparently taking in the point that it was undermined by the admission to the police officer.

The application for judicial review was allowed on all three grounds argued:

– that by ignoring CPR 52.11(2) the judge had failed to enquire upon something that was his duty to do;

– that the lies of the landlord about the whereabouts of the police officer had corrupted the trial and that alone was sufficient to give rise to judicial review; and

– that the conduct of the judge gave rise to a finding of apparent bias in that his conduct of the hearing would lead a fair minded and informed observer to conclude that there was a real possibility of bias and that he had approached the case with a fixed view, that he was going to refuse to admit the fresh evidence; and that he failed to give the claimant’s counsel a fair hearing.

Stark comments: “Wilkie J went beyond holding that a fair minded and independent observer would hold that there was a real possibility of bias but that such an observer would conclude that there was apparent bias in the sense that he had made his mind up in advance.”

High Test

This case is, he stresses, of importance as it “demonstrates that an application for refusal of permission to appeal can succeed although it faces a high test”. He comments: “It also demonstrates that a classic ground for judicial review, namely apparent bias, falls within the limited category of cases where the judicial process has been frustrated and corrupted rather than a judge acting as he should making an error of law.”

It also demonstrates the importance of a fair hearing at the oral permission to appeal stage as; it is, says Stark, “the last chance for a litigant to achieve justice if they are aggrieved by what happened below”.

Points for practitioners

Stark suggests: “Judges should be particularly vigilant to make sure that there really is nothing in the appellant’s case to suggest a real prospect of success. It also illustrates for litigants the importance of focusing carefully on the grounds for appeal in such a case, not only that the decision of a judge below may be wrong but where those proceedings have been subject to a serious procedural or other irregularity. “Here, the deliberate decision of the landlord to mislead the court and not to call the WPC from whom he had obtained a partial statement as he knew she would undermine his case amounted to the latter ground of appeal.”

He cautions those advising parties in this situation: “It is also a clear reminder that litigants in person do not necessarily abide by expected standards of court behaviour and the need to be alert to why for example a witness has suddenly failed to appear, or the non-availability of a document and that the latitude given to litigants in person should be only carefully extended.”

Quick links

> The full article can be found on under Current Awareness on the Lexis Nexis network (subscription only) ref: LNB News 25/04/2012 80 "High Test for Judicial Review of Refusal of Permission to Appeal" Click here to sign in if you have an account.

> 23/2/12 - Administrative Court quashes refusal of County Court Judge to grant permission to appeal