Sharing, R (on the application of) v Preston County Court

Judicial review of a county court decision refusing permission to appeal is a wholly exceptional remedy. It is available where the judicial process itself has been frustrated or corrupted, such as through a substantial denial of a fair hearing or apparent bias. A mere error of law or fact, however serious, is insufficient.

Where the conduct of the judge would cause a fair-minded and independent observer to conclude that the judge had reached a fixed decision before considering the application, the decision may be quashed. The matter should then be reconsidered by a different judge, even where the underlying appeal may ultimately have little prospect of success.

The claimant brought a claim against her former landlord alleging unlawful eviction, harassment and trespass. A district judge dismissed the claim and allowed the landlord’s counterclaim for rent and deposit. The claimant sought permission to appeal, relying principally on fresh evidence from a police officer which affected the credibility of the landlord and another witness.

A circuit judge refused permission to appeal. The claimant sought judicial review, alleging that the circuit judge had failed to consider the fresh evidence and had conducted the hearing in a manner demonstrating apparent bias. The central issues were whether the refusal was amenable to this exceptional form of review and whether the hearing had been conducted fairly.

1. Outcome. The claim for judicial review succeeded. The circuit judge’s refusal of permission to appeal was quashed, and the question whether permission should be granted on the basis of the fresh evidence was remitted to a different circuit judge.
2. Exceptional remedy. Applying the principles collected in Strickson v Preston County Court [2007] EWCA Civ 1132, judicial review in this context is reserved for cases in which the judicial process itself has been frustrated or corrupted. It is not available merely because the lower court reached an incorrect conclusion, even one involving serious error.
3. Fresh evidence. The circuit judge had addressed the fresh evidence in his judgment and explained why he considered it would not alter the result. That reasoning did not, by itself, establish a failure to perform his duty.
4. Apparent bias. The transcript showed repeated interruptions, refusal to allow counsel properly to develop the fresh-evidence argument, and repeated assertions that the claimant had already lost because the district judge had disbelieved her. Viewed objectively, the conduct would lead a fair-minded and independent bystander to conclude that the circuit judge had finally decided from the outset to refuse the application and would not fairly consider the fresh evidence.
5. The court considered that the fresh evidence might still leave the unlawful-eviction claim weak, because parts of the evidence suggested that the claimant had left voluntarily. That did not justify withholding relief once apparent bias had been established. The evidence might nevertheless bear on the separate allegations of harassment and trespass.
6. The claimant was granted an order for detailed assessment of her legally aided costs and permission to apply in writing for an order for costs against the defendant on notice to the Ministry of Justice.

• Preston County Court: A district judge dismissed the claimant’s claim against her former landlord and upheld his counterclaim for rent and deposit.
• Preston County Court: A circuit judge extended time but refused permission to appeal on 22 November 2010.
• High Court (Administrative Court): The refusal of permission was quashed and remitted to a different circuit judge.