Pelling, R (on the application of) v Bow County Court

The common-law principle that civil hearings are generally public does not prevent procedural rules from permitting private hearings in limited circumstances. A rule is lawful where it preserves a general rule of public hearings and makes privacy discretionary, subject to the interests of justice. A practice direction may identify ordinary situations in which that discretion will commonly be exercised, without creating an inflexible presumption or defeating the common-law principle. Whether a particular arrangement constitutes a public hearing depends on the circumstances as a whole. Security arrangements, including controlled access, do not necessarily make a hearing private. A wider public-interest challenge to an unargued provision may properly be refused where the proceedings lack the factual and evidential foundation needed for determination.

The applicant sought judicial review of provisions of the Civil Procedure Rules 1998 and associated practice directions concerning private hearings, particularly possession proceedings and small claims. He argued that the provisions were ultra vires because they conflicted with the common-law principle of open justice recognised in Scott v Scott [1913] AC 417, and with article 6 of the European Convention on Human Rights.

The Administrative Court dismissed the challenge. It held that rule 39.2(3)(c) was facultative and subject to the general rule that hearings are public, and that the practice direction operated within that discretion. It also held that the arrangements at Bow County Court did not prevent small-claims hearings from being public. The applicant sought permission to appeal on the permitted issues.

The application for permission to appeal was refused, and permission to appeal to the House of Lords was also refused.

1. Open justice and rule 39.2. The common-law principle in Scott v Scott [1913] AC 417 is important but not absolute. The paramount object is the administration of justice, and publicity is a means to that end. Rule 39.2(3) is facultative: it permits a judge to sit in private only in specified circumstances and remains subject to the interests of justice and the general rule in rule 39.2(1) that hearings are public. It therefore did not infringe the principle of legality.
2. European Convention rights. The Administrative Court was entitled to conclude that the rule, considered as a rule, gave no realistic prospect of being found incompatible with article 6. Article 6 does not create absolute rights, and the rule itself preserves judicial discretion in applying the requirements of justice.
3. Practice Direction 39. The provision listing possession proceedings among hearings initially to be listed in private merely identified situations in which the discretion under rule 39.2(3)(c) would ordinarily be exercised. It was not hard and fast and was consistent with the requirements of justice recognised in Scott v Scott [1913] AC 417.
4. Locked-door arrangements. Whether a hearing is public depends on the arrangement as a whole. The Administrative Court was entitled to find that the security door at Bow County Court did not sufficiently inhibit public attendance to make the small-claims hearings private. The court accepted that there was a substantive security reason for controlling access.
5. Unpermitted wider challenge. The proposed challenge to the provision allowing a small-claims hearing to be private where the parties agreed was not allowed to proceed in these proceedings. A public-interest challenge required a wider factual and evidential canvass of where the public interest lay, which was absent from the case as constituted.

• Court of Appeal (Civil Division): On 31 March 2000 permission was granted on limited issues concerning private hearings in possession proceedings, small claims and the Bow County Court arrangements. On 22 January 2001 the application for permission to appeal was refused.
• Administrative Court: Buxton LJ and Penry-Davey J dismissed the application for judicial review on 19 October 2000.
• High Court: Keene J refused permission for judicial review on 26 January 2000.