James, R (on the application of) v Secretary Of State For Department Of Trade & Industry

Judicial review of ongoing disciplinary proceedings is premature where the tribunal has not decided whether to seek disclosure from a public authority. A challenge to the authority’s refusal is likewise premature until a request has been made. Applications for permission to appeal lodged more than a year late will fail where the delay is inadequately explained. In recusal cases involving a former client, the judge must use memory and conscience to assess whether the former relationship potentially bears on the issues. Legal professional privilege prevents inquiry into the advice itself. Without evidence of such an impediment, recusal is not required.

The applicant, a former chartered accountant and director, faced disciplinary proceedings concerning an allegedly fraudulent invoice. Following the discontinuance of disqualification proceedings under the Directors Disqualification Act 1986, the disciplinary proceedings resumed. He sought disclosure by the Department of Trade and Industry of files said to contain material relevant to his defence.

The disciplinary tribunal declined to vacate its hearing date. Latham J refused judicial review seeking to quash or adjourn the proceedings, and later refused judicial review against the Department because the tribunal had not yet requested production. He also declined to recuse himself based on prior professional advice to the Department and another company. By the time permission was sought, the tribunal had struck the applicant off for life, awarded costs, and the Appeal Tribunal had dismissed his appeal. The central issues were whether the applications were premature or out of time and whether recusal was required.

The Court of Appeal refused both applications for permission to appeal.

1. Prematurity and appropriate target of review. Latham J’s decisions were unimpeachable. Judicial review against the disciplinary tribunal was unnecessary because it had not decided whether to ask the Department for the missing documents. Judicial review against the Department was premature because no request for those documents had yet been made. The proper later challenge, if necessary, would have been to a refusal by the tribunal to seek disclosure, rather than a renewal or appeal of the 1999 applications.
2. Possible procedural consequences. Although the tribunal had no power to order the Department to disclose the documents, a request made in the interests of justice would probably have been heeded. If the Department refused without good reason, mandamus might potentially have been available. If the tribunal itself refused to seek the documents and thereby denied justice, that decision might also have been challengeable, although the court expressed no concluded view.
3. Delay and prospects. Both applications were more than a year out of time. The applicant gave no adequate explanation for the delay, which was independently fatal. The grounds were also confused and there was no realistic prospect of success, particularly because the disciplinary proceedings had concluded. The challenge to the decision to proceed had in any event been known since April 1998 and was not pursued.
4. Recusal. A judge who formerly advised a party must consult memory and conscience to determine whether the relationship creates anything potentially embarrassing or capable of impinging on the issues. Legal professional privilege prevents the advice from being examined with the parties. In the absence of evidence of such an impediment, recusal was not required. Even if recusal had been proper, setting aside the decisions would have produced no practical benefit, since a renewed application would have been less advantageous after the subsequent disciplinary history.

The applications were refused.

• Court of Appeal (Civil Division) — Refused permission to appeal against the decisions of Latham J. [2001] EWCA Civ 965.
• Queen’s Bench Division (Administrative Court) — Latham J refused judicial review seeking to quash or adjourn the disciplinary proceedings and refused judicial review against the Department’s refusal to disclose documents.