Kelway, R (on the application of) v Canon (UK) Ltd

Judicial review of a county court decision is exceptional. It is potentially available only where the decision is no longer open to appeal or review, has not received proper judicial scrutiny, involved excess of jurisdiction, gross procedural error or a fundamental and exceptional miscarriage of justice, and is a matter of public interest.

A judicial review claim must be started promptly and, ordinarily, within three months. A claimant cannot defer proceedings while seeking further information or awaiting ancillary costs proceedings. County court proceedings should not generally be adjourned merely because judicial review is threatened.

The claimant brought three related judicial review claims arising from prolonged county court litigation and subsequent complaints to Northumbria Police and the Independent Police Complaints Commission. He challenged decisions concerning police complaints, costs assessment and enforcement, and sought permission to amend one claim to allege systemic breaches of article 6.

The court also considered recusal and procedural applications and whether a general civil restraint order should be imposed. The central issues were whether the claims were brought in time, whether the challenged decisions were amenable to judicial review, and whether any ground had a realistic prospect of success.

1. Outcome. The recusal and related applications, the application to amend, and all three renewed applications for permission to apply for judicial review were dismissed. Each was held to be totally without merit. A general civil restraint order was imposed for two years.
2. Judicial review of county court decisions. Judicial review was only potentially available where the decision was no longer open to appeal or review; had not been, but could no longer be, subject to proper judicial scrutiny; was clearly reached in excess of jurisdiction, or resulted from gross procedural error or a fundamental and exceptional miscarriage of justice; and was additionally a matter of public interest. This four-fold test was particularly restrictive because the county court possessed its own hierarchy of appeals, reviews and safeguards.
3. Promptness. A judicial review claim had to be started as soon as reasonably possible and no later than three months after the decision challenged. It was only in very rare cases that delay could be justified by the need to obtain further information. There was no rule requiring a claimant to await the disposal of ancillary costs proceedings.
4. Effect on underlying proceedings. A county court should not delay or adjourn a hearing, trial or decision merely because judicial review proceedings were threatened, even where those proceedings might potentially unravel the decision under consideration.
5. Application to the claims. The claims were out of time and no adequate explanation or basis for extending time was established. The complaints about police investigations, IPCC decisions, costs orders, alleged tape tampering and procedural irregularities had no realistic prospect of success. The proposed amendment was also procedurally defective, substantially out of time and unsupported by evidence.
6. The court confirmed that the stay on enforcement had expired when permission to appeal was refused, and that the county court had jurisdiction to correct an accidental omission in a circuit judge’s order under CPR 40.12. The general civil restraint order covered proceedings in the High Court and county courts from 20 August 2013 to 19 August 2015.

The judgment describes earlier decisions in the underlying county court litigation and related appeals, including decisions of the Court of Appeal. Those decisions formed part of the factual and procedural background. This court dismissed the applications and refused permission to proceed with judicial review.