Brian Nesbitt, R (on the application of) v Clevland, Durham and Northumbria Legal Team HMCTS

A decision refusing to issue criminal summonses may be challenged by judicial review only on an established public-law ground. Where irrationality is alleged, the claimant must show that the decision was arguably one which no reasonable decision-maker could have reached. Strong and genuine belief in the allegations is insufficient. A decision-maker may take account of detailed findings made after the underlying dispute has been fully tried and the evidence tested. Where those findings contradict allegations of dishonesty and provide a rational basis for refusing summonses, the decision will ordinarily be unchallengeable. Cogent evidence is required even at the summons stage where serious dishonesty is alleged against professional persons.

This was a renewed application for permission to seek judicial review. The claimant challenged decisions dated 23 August 2021 and 11 March 2022 by a Legal Team Manager refusing to issue criminal summonses against a Citizens Advice Bureau adviser and a solicitor.

The proposed offences concerned alleged dishonesty, false instruments and improper conduct arising from a 2003 settlement of the claimant’s employment dispute with Dunlop. The settlement had previously been considered in Employment Tribunal proceedings and in a fully contested County Court trial, where the claimant’s case was rejected and the settlement was found to have been agreed with his knowledge and consent. The central issue was whether the refusal to issue summonses was arguably irrational.

1. Application dismissed. The renewed application for permission to seek judicial review was dismissed.
2. The court could intervene only if the Legal Team Manager’s decision was arguably irrational, meaning that it was a conclusion which no reasonable decision-maker could have reached. The claimant’s strong and genuine belief in his allegations did not satisfy that threshold (para [31]).
3. The central allegations had already been advanced in County Court proceedings, tested by live evidence and rejected in a detailed judgment. The County Court judge found that the claimant had agreed to the £9,000 settlement, that the COT3 was genuine and procedurally valid, that ACAS had been involved, and that both proposed defendants were honest (paras [22]-[28], [32]).
4. Those findings supplied an adequate and rational basis for refusing summonses alleging dishonesty and improper behaviour. The Legal Team Manager was obviously entitled to reach the challenged conclusion in light of the earlier trial findings, even though the claimant continued to believe a different account of events (para [32]).
5. The court observed that very cogent evidence would be required even at the summons stage where dishonesty was alleged against professional persons, particularly where there was no apparent personal motive for dishonest conduct (para [21]).
6. The court also adopted the reasons of His Honour Judge Kramer in refusing permission (para [33]).

• Single judge: His Honour Judge Kramer refused permission to seek judicial review.
• High Court (Administrative Court): The renewed application for permission was dismissed by Mr Justice Julian Knowles on 13 December 2022.