Ewing, R (on the application of) v Secretary of State for Justice

An application by a vexatious litigant under section 42 of the Supreme Court Act 1981 and an application for judicial review permission may be dealt with together, or through a procedure tailored to the case. Failure expressly to state the section 42 decision does not make the order a nullity where that application was before the court and the circumstances show that leave must have been granted. Apparent bias requires a demonstrated nexus between the judge’s previous governmental or prosecutorial role and the issue before the court; former membership of a government, without more, is insufficient. A prospective defendant may make representations in judicial review proceedings even without a specific service direction where the court contemplated its involvement.

The claimants were subject to civil proceedings orders under section 42 of the Supreme Court Act 1981. They sought permission under section 42(3) to challenge an order of Cranston J refusing permission to apply for judicial review of provisions in the Civil Proceedings Fees (Amendment)(No 2) Order 2007.

They argued that Cranston J’s order was a nullity because he had not expressly ruled on the section 42 application before refusing judicial review permission, and because he was apparently biased. They also argued that he had improperly considered representations from the Secretary of State without a prior service direction. The court additionally considered delay.

1. Section 42 and judicial review permission. The claimants had applied for section 42 leave, and that application had been listed and argued together with the judicial review issue. The approach requiring both applications to be considered together remained appropriate where the circumstances did not require a staged procedure. Cranston J’s order, refusing permission for judicial review after hearing the relevant submissions, necessarily implied that the section 42 application had been allowed. It was more satisfactory to state that conclusion expressly, but the omission did not render the order a nullity.
2. Superior court orders. The language of nullity was inappropriate. Orders of a superior court were properly characterised as regular or irregular. The authorities concerning inferior courts did not establish that Cranston J’s order could be treated as nonexistent.
3. Apparent bias. The applicable question was whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A judge’s former membership of a government did not itself disqualify the judge from considering a challenge to legislation made by that government. There had to be a demonstrated nexus between the issue before the court and the judge’s prior ministerial or prosecutorial role. No such nexus, prior promotion of fees for vexatious litigants, close personal relationship or relevant prior statement had been shown.
4. Representations by the Secretary of State. The Secretary of State, as the prospective defendant, had standing to make representations. The relevant practice-direction provisions did not determine who could attend or be heard at the hearing. The Deputy Judge’s direction for a Secretary of State skeleton argument showed that his involvement had been contemplated, and CPR 54.9 independently permitted participation by a person who had not filed an acknowledgement of service.
5. Disposition. The application disclosed no arguable basis for appealing on bias or standing. Although the court would not have refused permission solely for delay, the application was seven days late and no arguable appeal had been shown. The application was refused.

The judgment itself records the earlier order of Cranston J at [2008] EWHC 1764 (Admin), which refused permission to apply for judicial review. The present application for section 42 leave to challenge that order was refused.