Mallaby, R (on the application of) v Harrogate County Court

Judicial review is a discretionary remedy and will ordinarily be refused where an alternative remedy is available and appropriate. An appeal from a county court order generally provides a wider remedy than judicial review because it may address the merits, procedural irregularity and Convention arguments. The choice of appeal is especially appropriate where the claimant seeks relief affecting another party’s private-law rights. A county court may technically be subject to judicial review, but that jurisdiction does not make judicial review the proper method of challenging its decision.

Patricia Ann Mallaby sought permission to appeal against Lightman J’s refusal of permission to apply for judicial review of orders made in matrimonial ancillary relief proceedings in the Harrogate County Court. The county court orders transferred her interest in a farm to her former husband, subject to financial provision, and declared the parties’ farming partnership dissolved.

She wished to quash the county court orders and obtain relief affecting her former husband’s entitlements. She argued that the matrimonial proceedings were the wrong forum and raised alleged procedural impropriety, irrationality, illegality and Convention incompatibility. The central issue was whether judicial review was an appropriate route, rather than an appeal, for challenging the county court orders.

1. Application dismissed. Lady Justice Hale dismissed the application for permission to appeal, with no order for costs. The applicant was given liberty to apply within 21 days for an oral hearing, reserved to Lady Justice Hale. A transcript was ordered at public expense.
2. Judicial review is technically available against a county court. The County Courts Act 1984, sections 83 and 84, recognises the effect of certiorari or prohibition proceedings against a county court; section 84 treats prohibition proceedings as an appeal. That jurisdiction does not determine whether judicial review is appropriate.
3. Judicial review is discretionary and will normally be refused where an alternative remedy is available and appropriate. An appeal was the correct remedy here. It offered wider scope than judicial review, including consideration of the merits, procedural irregularity and arguments based on Convention rights. The recent decision in White v White [2001] 1 AC 596 was identified as an example of a merits issue that could be raised on appeal.
4. The appeal route was particularly appropriate because the claimant sought private-law relief against her former husband and orders affecting his existing rights under the ancillary relief order. Judicial review against the county court was not an appropriate substitute for that appeal.
5. The prospects of success in judicial review were very limited. It could not be irrational for the county court to determine a Matrimonial Causes Act claim where the appropriate matrimonial forum had already been confirmed by the Court of Appeal. The court expressed no view on the potential merits of any late appeal against Judge Hunt’s order.

• Court of Appeal (Civil Division) — Permission to appeal against Lightman J’s refusal of permission for judicial review was dismissed. Liberty to apply for an oral hearing within 21 days was granted.
• Administrative Court — Lightman J refused permission to apply for judicial review on 6 August 2001.
• Harrogate County Court — District Judge Wood made ancillary relief orders on 12 September 2000. His Honour Judge Hunt dismissed the claimant’s appeal on 18 January 2001.