McKenzie, R (on the application of) v Department for Constitutional Affairs

A judge may adopt a robust and proactive approach to case management, including stating a provisional view on the apparent merits, provided that the hearing remains fair and the judge does not display bias, hostility, incompetence or prejudice. The assessment of judicial conduct must consider the hearing as a whole and in context. Remarks which might appear patronising when isolated may be unobjectionable when understood objectively in their full context. A challenge to the legality or rationality of an administrative decision should be brought within the time for judicial review. Pursuing overlapping civil proceedings first, and commencing judicial review later, may be oppressive and an abuse of process. An application wholly without merit may be certified under CPR r 3.11.

The claimant sought permission to apply for judicial review of the Department for Constitutional Affairs’ decision of 26 March 2004 dismissing his complaint about the conduct of HH Judge Medawar QC during a two-day hearing in the Central London County Court. The complaint concerned alleged bias, discourtesy, improper comments and racial motivation.

The claimant had first brought civil proceedings concerning the investigation of his complaint. Those proceedings were struck out by HH Judge Mackie QC, and permission to appeal was refused by Mr Justice Silber. The central issues were whether the DCA’s decision was irrational and whether the claimant’s delay and piecemeal litigation constituted an abuse of process.

1. Merits. Permission to apply for judicial review was refused. The DCA had rationally concluded that HH Judge Medawar QC had not committed misconduct. The claimant had received a fair hearing.
2. A judge who has read the papers may state a provisional view of the apparent merits, even in robust terms, to focus the issues and promote an efficient hearing. That approach is lawful provided the judge does not demonstrate bias, incompetence, prejudice or hostility and maintains courtesy and patience, particularly towards a litigant in person.
3. The distinction between robust case management and improper conduct is fact-sensitive. Strong descriptions of arguments, including calling them irrelevant or nonsensical, did not establish misconduct when considered in the overall context. The judge had allowed the claimant to develop his arguments and had sought to identify any point capable of saving the claims.
4. The judge’s comment that the claimant did not seem unintelligent could have caused offence if isolated. Viewed objectively and in context, however, it expressed puzzlement that a person appearing intellectually capable was pursuing claims regarded as hopeless. It was not reasonably demeaning or racially offensive, and the DCA’s appraisal was rational and correct.
5. Delay and abuse of process. The claimant should have challenged the DCA decision within the prescribed time for judicial review. Bringing overlapping civil proceedings first, exhausting the available appellate route, and then waiting nearly two further months before seeking judicial review lacked justification. Allowing the challenge to proceed would be contrary to finality in litigation and oppressive to the defendant.
6. The application was certified as totally without merit under CPR r 3.11. Any further applications were directed to be made by short written submissions.

The judgment records that the Court of Appeal refused permission to appeal from HH Judge Medawar QC’s underlying County Court order on 15 December 2003. The claimant’s later civil proceedings concerning the complaint were struck out by HH Judge Mackie QC on 17 June 2005, and Mr Justice Silber refused permission to appeal on 19 October 2005. Mr Justice Collins refused permission for judicial review on the papers on 3 March 2006. The present court refused permission after an oral hearing.