Topping v Ralph Tristees Ltd

The destination of an appeal from a county court decision depends on the judge’s status for the purposes of the applicable appeal provisions. A district judge who hears proceedings released to that judge by the Designated Civil Judge may fall within the definition of a circuit judge for appeal purposes, even though the district judge has not been appointed a circuit judge or recorder. The route of appeal is determined by the combined effect of the relevant practice directions. It does not depend on whether the Designated Civil Judge intended to confer a separate capacity on the district judge, or on the happenstance of judicial availability.

The claimant sought to appeal a personal injury claim dismissed after trial by a district judge in the Milton Keynes County Court. The claim had originally been listed for trial before a circuit judge but was released by the Designated Civil Judge to District Judge Thorpe under practice direction 2B.

Foskett J directed that any appeal should be made to a circuit judge, treating the trial judge as a district judge. The claimant applied to set that order aside and sought a ruling that the appeal lay to the High Court. The central issue was whether the district judge’s status for appeal purposes was governed by the appeal provisions applicable to a circuit judge.

1. Application granted. The order of Foskett J dated 24 May 2017 was set aside. The correct route of appeal was to the High Court, and the question of permission to appeal was to be considered by a High Court judge on the papers.
2. Practice direction 52A defined “C.J.” to include a district judge exercising the jurisdiction of a circuit judge with the permission of the Designated Civil Judge in respect of the case. The deciding judge therefore fell within the circuit judge category for the purposes of the appeal destination provisions.
3. Practice direction 2B, paragraph 16, was unclear in isolation but had to be read consistently with practice direction 52A. It encompassed proceedings which would normally have been heard by a circuit judge but were exceptionally released to a district judge.
4. The route of appeal did not depend on whether the Designated Civil Judge had objectively or subjectively conferred the “capacity” of circuit judge. The decisive question was the combined effect of the practice directions.
5. The court also reaffirmed the elementary rule of open justice that a party must not communicate privately with the court without simultaneously alerting the other parties, citing Mohamed v The Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2010] EWCA Civ 158.

Foskett J’s order of 24 May 2017 directed that any appeal be issued before a Circuit Judge in Milton Keynes County Court. The High Court set that order aside and held that the appeal lay to the High Court.