Ogunbiyi, R (on the application of) v Southend County Court & Anor

Judicial review of a county court’s case-management decision is supervisory, not appellate. The Administrative Court must not reassess the merits or intervene merely because the lower court may have erred, even seriously. Intervention is reserved for a truly exceptional frustration or corruption of the judicial process, including a wholly exceptional collapse of fair procedure. An adjournment decision may be fair even though another outcome might also have been fair. Article 6 rights receive particular weight, but reasonable tribunals may reach different fair outcomes. The absence of a party’s oral evidence does not, by itself, establish a denial of a fair hearing.

The claimant sought judicial review of a decision by a Circuit Judge at Southend County Court refusing permission for a further appeal against a District Judge’s refusal to adjourn a damages trial. The trial proceeded in the claimant’s absence because he was engaged in an over-running criminal trial. His solicitors had overlooked correspondence identifying the civil trial date, and a witness statement and solicitors were available at the trial.

The Circuit Judge concluded that there was ample material supporting the refusal to adjourn. The central issue was whether the Circuit Judge’s decision disclosed an error meeting the very high threshold for judicial review of an unappealable county court decision.

1. The claim was dismissed. The court was exercising a highly attenuated supervisory jurisdiction, not a further appellate jurisdiction. The fact that the Circuit Judge might have been wrong, even extremely wrong, would not suffice.
2. The governing threshold was the truly exceptional case in which the judicial process had been frustrated or corrupted. A substantial denial of a fair hearing meant a wholly exceptional collapse of fair procedure, of the kind exemplified by actual bias. The claimant’s inability to give oral evidence did not, without more, establish such a denial.
3. In relation to adjournments, Andreou v Lord Chancellor’s Department [2002] IRLR 728 required respect for the inferior tribunal’s exercise of discretion while recognising the importance of a fair trial. As explained in Terluk v Berezovsky [2010] EWCA Civ 1345, fairness did not require that there be only one fair outcome. Article 6 rights required particular weight, but reasonable tribunals could differ.
4. The Circuit Judge had been entitled to proceed without a transcript of the District Judge’s ruling and to decide the matter on the available information. His reasoning properly considered the lateness of the application, the overlooked letter, the communication breakdown, the balance of prejudice, and the availability of written evidence and legal representation.
5. Although the District Judge’s description of the claimant’s conduct as discourteous was unfair and the importance of oral evidence might have been addressed more explicitly, those matters did not infect the Circuit Judge’s decision. Even assuming an error of law, the case was far from the egregious circumstances required for intervention.

The judgment itself describes the underlying procedural history:

• Southend County Court: the District Judge refused an adjournment and proceeded with the trial in the claimant’s absence, finding for Lombard.
• Southend County Court: the Circuit Judge refused permission for a further appeal and held that the District Judge’s decision fell within the permissible exercise of discretion.
• High Court (Administrative Court): judicial review dismissed.