Hussein v Commissioner Of Metropolitan Police & Ors

In an application for permission to appeal against a discretionary refusal to transfer proceedings, the applicant must show a real prospect that a full appeal would establish either a disregard of legal principle or that the refusal was plainly wrong. Serious allegations of corruption, conspiracy or actual bias require concrete evidence. Administrative errors, delay or misfiling may result from mistake and do not, without evidence of influence or partiality, justify transfer. Assertions alone cannot displace the lower court’s exercise of discretion.

The claimant pursued a long-running damages action against the Metropolitan Police Commissioner and two officers. After the claim was struck out for alleged non-compliance with an unless order, an earlier appeal restored it. A later strike-out for failure to give discovery was appealed, but the claimant instead sought transfer from Croydon County Court, alleging corruption, racial prejudice, collusion and lack of impartiality.

Judge Ellis refused transfer and, after the claimant declined to pursue the strike-out appeal, dismissed it. Mummery LJ adjourned the application for permission to appeal so that the claimant could provide sworn evidence. The central question was whether that evidence gave a real prospect of showing that the refusal to transfer was legally improper or plainly wrong.

Lord Justice Simon Brown delivered the leading judgment. Lord Justice Sedley agreed with the result and added observations on the evidential basis required for allegations of bias.

1. A decision whether to transfer proceedings is discretionary. Permission to appeal against that exercise required a real prospect of showing on a full appeal either that the discretion had been exercised in disregard of legal principle or that the refusal was plainly wrong.

2. The claimant’s affidavit and documents did not establish that threshold. The chief clerk’s erroneous affidavit did not justify an allegation of perjury. The delay in listing the earlier appeal was more plausibly explained by administrative mistake than by knowing complicity. The material provided no solid foundation for allegations that the police, intelligence services or court staff were conspiring to defeat the claim.

3. The evidence did not establish actual bias by the Croydon County Court or show that Judge Ellis had approached the matter other than objectively. The refusal to transfer was therefore not shown to disregard legal principle or to be plainly wrong.

Lord Justice Sedley agreed. He emphasised that courts should not dismiss allegations as impossible, but must act on proof rather than assertion. Misfiling by court staff was a sufficient ordinary explanation for the procedural errors identified. Even a possible hostile view held by a court officer would not establish that the judge’s adjudication had been influenced. The application was refused with costs.

• Court of Appeal (Civil Division) — On 18 December 2001, the application for permission to appeal was refused with costs: [2001] EWCA Civ 2045.
• Court of Appeal — On 15 May 2001, Mummery LJ adjourned the permission application so that sworn evidence could be filed concerning the allegations of bias and corruption.
• Croydon County Court — On 4 October 2000, Judge Ellis refused the application to transfer the proceedings. After the claimant declined to proceed with the appeal against the strike-out, that appeal was dismissed.