Barron, R (on the application of) v Surrey County Council

Public law proceedings may properly continue after the claimant’s private dispute has been resolved, where the proceedings raise an important issue concerning the lawfulness of a public authority’s conduct affecting others.

The relevant questions are whether a determination would provide useful guidance on legality and whether the proceedings remain a suitable vehicle for providing it. Formal representative proceedings or joinder of other affected persons are not necessarily required. A court should not use an application concerning transfer or joinder as a substitute for an unmade application to stay for delay. A stay which permanently prevents a public law challenge may be disproportionate, particularly where the proceedings are in the nature of a test case.

Mrs Barron challenged Surrey County Council’s policy of charging owners of properties adjoining Chobham Common for rights of way previously acknowledged by the council. Her challenge comprised a public law claim based on legitimate expectation and a private law claim asserting a prescriptive right of way.

The private law claim was conceded. Mrs Barron nevertheless sought to continue the public law challenge, which potentially affected a substantial group of property owners, and sought the transfer of the proceedings to the Administrative Court and the joinder of Mr Brown as a co-claimant.

A deputy master refused the transfer. Stanley Burnton J dismissed Mrs Barron’s appeal and upheld a stay, principally because of delay and the absence of a timely joinder application. The central issue was whether the proceedings could properly continue as a test case after Mrs Barron’s private claim had ended.

Appeal allowed. The Court of Appeal, in the judgment of Dyson LJ, held that the proceedings were not confined to Mrs Barron’s individual claim. Although they were not formal representative proceedings under CPR Part 19.6, the claim form identified her as a member of a group and sought relief extending to similarly situated owners. In substance, the proceedings were a test case.

1. It was proper for a single judicial review claim to address the legality of the council’s policy. A series of claims, or one composite claim with multiple claimants, was not required. The court applied the approach illustrated by R v Hertfordshire County Council, ex parte Cheung.

2. Public law proceedings may continue even where the claimant no longer requires a remedy for the vindication of personal rights. The principal considerations are whether relief or a determination would provide valuable guidance on the lawfulness of the public authority’s conduct and whether the proceedings remain an appropriate vehicle for providing that guidance. The court adopted the reasoning in R v BBC, ex parte Quintavelle, [1998] 10 Admin LR 425.

3. The concession of the private law claim did not render the public law claim academic. The legality of the policy remained an important issue affecting the property interests of many people. Mrs Barron could continue the public law claim without joining other interested persons, although Mr Brown’s joinder could be convenient for case management.

4. The judge had treated the matter principally as an application for joinder and had used the transfer and joinder applications as a vehicle to stay the whole proceedings. No application for a stay had been made. The court therefore should not have determined the case on that basis without the material needed for the necessary balancing exercise.

5. The five-month delay was disproportionate to the consequences of a stay, which would permanently prevent public law challenges to the policy. There had been delay on both sides, and the council had not applied for a stay. The stay was removed.

Mr Brown was joined as co-claimant. The proceedings remained in the Chancery Division, to be heard by a nominated Administrative Court judge who was a Chancery Division judge. The council was ordered to serve its defence and written evidence. The council paid the costs of the appeal; earlier costs were costs in the cause.

• Court of Appeal (Civil Division): allowed the appeal, removed the stay, directed Mr Brown’s joinder and retained the proceedings in the Chancery Division.
• High Court, Queen’s Bench Division, Administrative Court: Stanley Burnton J dismissed Mrs Barron’s appeal from the deputy master’s refusal to transfer the proceedings and upheld a stay.
• Deputy Master Cousins: refused the application to transfer the proceedings to the Administrative Court.