R (Sivasubramaniam) v Wandsworth County Court (R (Sivasubramaniam) v Kingston upon Thames County Court (Lord Chancellor’s Department intervening))

A statutory prohibition on appealing a decision to grant or refuse permission to appeal does not, by implication, oust the High Court’s judicial review jurisdiction. That jurisdiction remains available but must be exercised consistently with the statutory appeals scheme.

Where a suitable statutory appeal remains available, judicial review of a county court decision should be refused save in exceptional circumstances. After the appropriate appeal court has refused permission, a further attempt to challenge the merits by judicial review should ordinarily be dismissed summarily. Review may remain appropriate in the very rare case of a jurisdictional error in the narrow, pre-Anisminic sense, or a procedural irregularity amounting to denial of a fair hearing.

The appellant sought permission to appeal from Hooper J’s dismissal of two applications for permission to claim judicial review. The proposed claims challenged decisions made by Circuit Judges in two sets of county court proceedings.

In the Wandsworth proceedings, a Circuit Judge had declined to revive an action dismissed in 1999. In the Kingston proceedings, Judge Morgan had refused permission to appeal an earlier order and had refused to restore an application to set aside a small-claim arbitration award. Hooper J rejected the challenges, partly on the merits and partly because the statutory appeal procedure supplied the appropriate remedy.

The Lord Chancellor’s Department intervened to address whether judicial review could be used where a statutory appeal had not been pursued, or after the appropriate appeal court had refused permission. The court also had to determine an application for permission to bring a second appeal.

Lord Phillips MR delivered the judgment of the court, comprising himself, Mance LJ and Latham LJ.

1. Disposition. The appeal and applications were dismissed. Permission for the proposed second appeal was refused because it raised no important point of principle or practice and there was no other compelling reason to hear it.

2. Judicial review jurisdiction was not ousted. Section 54(4) of the Access to Justice Act 1999, which prevents an appeal from a decision granting or refusing permission to appeal, did not impliedly exclude judicial review. Certiorari can be removed only by clear and explicit statutory language. The court applied the principle stated in R v Medical Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574 and explained the limits of In re Racal Communications Ltd [1981] AC 374.

3. An unexhausted statutory appeal ordinarily precludes judicial review. Judicial review is customarily refused as a matter of discretion where a suitable alternative remedy exists. The appellate regime created by the Access to Justice Act 1999 and the Civil Procedure Rules 1998 is coherent, fair and proportionate. Allowing a litigant to bypass it through the Administrative Court would defeat its purpose. Hooper J was therefore right to reject the challenge concerning the arbitration award, and should have rejected the Wandsworth challenge on the same ground without considering its merits.

4. Refusal of permission by the appeal court ordinarily ends the matter. Once the lower decision has been considered at two judicial levels, an application seeking further review of its merits should be dismissed summarily as a matter of discretion. The different practice concerning refusals of permission by the Immigration Appeal Tribunal was distinguishable because asylum cases commonly engage fundamental rights, grave consequences and a need for the most anxious scrutiny: Robinson v Secretary of State for the Home Department [1997] Imm AR 568.

5. Very rare exceptions remain. Judicial review may be established where a Circuit Judge granting or refusing permission has committed a jurisdictional error in the narrow, pre-Anisminic sense, or where a procedural irregularity amounts to denial of the applicant’s right to a fair hearing. The appellant established neither circumstance. His unsupported allegations of a wide conspiracy supplied no arguable ground for relief.

1. Court of Appeal: In R (Sivasubramaniam) v Wandsworth County Court (R (Sivasubramaniam) v Kingston upon Thames County Court) [2002] EWCA Civ 1738, the court dismissed the appeal and applications. It also refused permission for the proposed second appeal.

2. High Court, Administrative Court: On 13 December 2001 Hooper J dismissed both applications for permission to claim judicial review. He rejected the Wandsworth challenge after assuming that judicial review was available. In the Kingston proceedings, he held that judicial review should not reopen a refusal of permission under the statutory appeal scheme and that an appeal to the Court of Appeal was the appropriate remedy concerning the arbitration award.

3. County courts: In Wandsworth County Court, a Circuit Judge declined to revive proceedings dismissed in 1999. In Kingston upon Thames County Court, Judge Morgan refused permission to appeal District Judge Coni’s order and refused to restore an application to set aside District Judge Dimmick’s arbitration award.