Pelling v Head of Civil Appeals

A decision by a court officer in the Civil Appeals Office about whether to issue an application in Court of Appeal proceedings is a judicial decision under CPR 52.16. It is not subject to judicial review by the Administrative Court. The proper route is a request under CPR 52.16(5) for review by the Court of Appeal. Where the application concerns discharge or variation of an earlier injunction, the Court of Appeal may direct that it be issued and considered by an appropriate Lord Justice, potentially without notice and subject to affected parties’ right to complain.

Dr Pelling sought judicial review after a Civil Appeals Office officer returned an application concerning discharge or setting aside of a 1996 Court of Appeal injunction. The Head of the Civil Appeals Office treated his correspondence as an out-of-time request under CPR 52.16 for review by the Court of Appeal. The Administrative Court, before Leveson J, dismissed the claim, holding that judicial review was unavailable and that reconsideration was an alternative remedy. Before the Court of Appeal, Dr Pelling also sought reconsideration of the Deputy Master’s decision not to issue the application. The central issues were whether the Administrative Court could review that decision and whether the application should be issued.

1. Permission to appeal. Permission to appeal against Leveson J’s judgment was refused. The decision whether an application notice should be filed in Court of Appeal proceedings had to be determined judicially under CPR 52.16. The Administrative Court therefore had no jurisdiction to review it, and the request for review by the Court of Appeal was the proper alternative remedy.
2. CPR 52.16. CPR 52.16 enables an assigned barrister or solicitor in the Civil Appeals Office, with the consent of the Master of the Rolls, to exercise the Court of Appeal’s jurisdiction in matters incidental to its proceedings. Court officer decisions may be made without a hearing, and a party may request review by the Court of Appeal. The course proposed by the Head of the Civil Appeals Office was therefore correct.
3. Reconsideration application. The application for reconsideration of the Deputy Master’s decision was allowed. The application concerning discharge or setting aside of the Court of Appeal’s earlier injunction was to be issued and placed before a Lord Justice specialising in family law. The court did not decide whether the injunction could be discharged in proceedings other than an application in the original proceedings.
4. Further directions. The Lord Justice was to bear in mind the undertaking given in Attorney General v Michael John Pelling [2005] EWHC 414 Admin and consider whether an order could be made without notice, subject to any affected party’s right to complain. If the injunction were discharged, no further proceedings would be necessary. The formal orders were refusal of permission to appeal, allowance of reconsideration, and permission to file the returned application notice again.

1. Court of Appeal (Civil Division): refused permission to appeal against the Administrative Court’s judgment, allowed reconsideration of the Deputy Master’s decision, and granted permission to file the returned application notice again.
2. Administrative Court: Leveson J dismissed the judicial review application, holding that judicial review was unavailable and that reconsideration by the Court of Appeal was the proper alternative remedy.