Hussein v Commissioner Of Metropolitan Police

Permission to appeal against a discretionary refusal to transfer proceedings requires a real prospect that the discretion was exercised in disregard of legal principle or was plainly wrong. A provisional view that this threshold is not met does not necessarily require immediate refusal. Where serious allegations are made about the fairness or impartiality of the court below, the application may be adjourned to a full court so the applicant can file evidence and the respondents can be heard. The adjournment determines neither permission to appeal nor the underlying appeal.

Mr Sayed Amdad Hussein brought civil proceedings against the Commissioner of Metropolitan Police and others after being acquitted of charges concerning false accounts. His claim was struck out by District Judge Fink on 18 August 1999 for failure to comply with an unless order relating to discovery.

On 4 October 2000, His Honour Judge Ellis refused Mr Hussein’s request to transfer the appeal to another court. He did not determine the appeal against the strike-out order because Mr Hussein declined to proceed. Mr Hussein applied to the Court of Appeal for permission to appeal and an extension of time, alleging corruption, racial prejudice and a lack of confidence in the court staff, while making no personal allegation against Judge Ellis. The central issue was whether the application should be refused on the papers or adjourned to permit evidence and a full-court hearing.

Application adjourned. Lord Justice Mummery neither granted nor refused permission to appeal. He directed that the application be heard by a full Court, with the respondents entitled to be represented, and allowed 28 days for Mr Hussein to lodge an affidavit.

1. To obtain permission to appeal against the exercise of a discretion concerning the transfer of proceedings, the applicant would have to show a real prospect of demonstrating on a full appeal that the discretion had been exercised in disregard of legal principle or that the refusal was plainly wrong.
2. On the material then available, the judge formed the provisional view that an appeal on that ground had little prospect of success. Judge Ellis had considered the relevant factors concerning transfer, had not been personally impugned, and had been satisfied that he could provide a fair hearing and that the case could proceed fairly if the appeal succeeded.
3. Nevertheless, the allegations concerning the conduct and impartiality of the Croydon County Court were serious and disturbing. Although Mr Hussein made no personal allegation against Judge Ellis, he alleged corruption, racial prejudice, improper influence and perjury by court staff. It would not be appropriate finally to refuse permission without giving him an opportunity to present evidence supporting those complaints.
4. The affidavit was to exhibit all relevant documents and give particulars of the allegations, the persons against whom they were made, and the basis on which Mr Hussein contended that an independent and impartial adjudication could not be obtained. The court made no finding that the allegations were established and did not determine the merits of the strike-out appeal or the separate extension-of-time issue.

1. Court of Appeal (Civil Division): On 15 May 2001, Lord Justice Mummery adjourned the application for permission to appeal to a full Court and directed that an affidavit be lodged within 28 days: [2001] EWCA Civ 726.
2. Croydon County Court: His Honour Judge Ellis refused the application to transfer the appeal to another court on 4 October 2000. He did not hear the appeal against the strike-out order because Mr Hussein declined to proceed.
3. Croydon County Court: District Judge Fink struck out the claim on 18 August 1999 for failure to comply with a discovery unless order made by District Judge Brown in July 1999.