Burton, R (on the application of) v Solihull Metropolitan Borough Council

A generalised or unsupported allegation of procedural unfairness or apparent bias does not justify transferring judicial review proceedings. The complaint must have a proper factual and legal foundation and a demonstrable connection with the substance or conduct of the proceedings. Administrative communications concerning listing, without more, do not undermine the independence or impartiality of the court or affect the validity of a regularly conducted hearing. A renewed transfer application will also lack merit where the transfer has already been considered judicially and no appeal has been brought.

The claimant applied without notice for proceedings to be transferred from Birmingham to London. He relied on a telephone conversation between court staff and a non-party concerning listing, and on the timing of public funding. It was accepted that there was no allegation of actual or potential bias against the judges who had dealt with earlier procedural matters, or against the judge hearing the application.

The proceedings had been transferred to Birmingham from London. Beatson J had previously refused an application for retransfer, and the matter had been listed so that the claimant’s appeal and the Council’s injunction application could be heard consecutively. The central issue was whether the alleged administrative irregularity gave a proper basis for retransfer or demonstrated material unfairness.

1. The application was dismissed. The allegation that a member of court staff had spoken to a non-party about listing did not provide a proper factual or legal basis for retransfer. The court staff’s conversation had no relevance to the substantive business before the court or to the manner in which that business would be determined.

2. The requirement of access to a fair and impartial tribunal and fair procedure, reflected in Article 6 of the European Convention on Human Rights, did not assist the claimant. The principle relied on from R (Alconbury Developments Ltd & Ors) v Secretary of State for the Environment, Transport and Regions [2003] 2 AC 295 did not convert an unsupported concern about administrative listing into a legally relevant appearance of bias.

3. The earlier transfer from London to Birmingham had been regular. Beatson J had already considered the claimant’s evidence and refused retransfer. There had been no appeal from that decision. The two sets of proceedings were appropriately listed before the same judge and heard consecutively.

4. The court also rejected any alternative application to adjourn for insufficient preparation time. There was no reason to suppose that the concern was real at the date of hearing, and the suggestion had not been advanced as a properly formulated application.

This was a first-instance application. The judgment records that Beatson J had previously refused an application to transfer the proceedings back to London and that no appeal had been brought from that decision.