Bryce, R (on the application of) v The Ministry of Justice

Judicial review of an unappealable judicial decision is a highly attenuated supervisory jurisdiction. It is reserved for truly exceptional failures that frustrate or corrupt the judicial process, such as excess of jurisdiction, failure altogether to adjudicate a matter which the court had an unequivocal duty to address, or a wholly exceptional collapse of fair procedure. Mere legal or factual error, even serious error, is insufficient.

A court may identify an arguable procedural or jurisdictional point yet refuse permission where the claim could serve no useful purpose. Restrictions on oral reconsideration under Part 52.4 of the Civil Procedure Rules must be construed conservatively, but the practical merits of the proposed challenge remain relevant.

The claimant had pursued extensive County Court proceedings against Trinity Hall Association and its secretary. Her claim was dismissed on the small claims track. HHJ Walden-Smith refused permission to appeal on most grounds, marked them totally without merit and excluded oral reconsideration, while granting permission on one ground and allowing that limited appeal.

The claimant then sought judicial review of HHJ Walden-Smith’s decision. She alleged that the judge had failed to consider her final amended grounds and lacked jurisdiction to prohibit oral reconsideration. The court also considered delay, since the claim was filed on the last day of the three-month period.

1. Permission refused. The claim concerned the supervisory review of a County Court decision from which no further appeal lay. The jurisdiction was highly attenuated and did not permit correction of ordinary legal or factual error.

2. The applicable threshold was the truly exceptional frustration or corruption of the judicial process. It could include excess of jurisdiction, failure altogether to enquire into or adjudicate a matter which the court had an unequivocal duty to address, or a wholly exceptional collapse of fair procedure. The claimant’s first ground would have had to establish such a procedural failure, not merely an erroneous decision.

3. The evidence did not establish that HHJ Walden-Smith had failed to consider the final amended grounds. Her note was an affirmative response to the direction of Lang J. It stated that both versions were before her and that she had considered all the grounds. There was no proper basis for treating that account as untrue. The first ground therefore disclosed no reviewable procedural defect.

4. The court considered it arguable that Part 52.4(3) of the Civil Procedure Rules did not apply where permission to appeal had been granted on one ground and only some grounds had been considered totally without merit. The provision appeared directed to refusal of the application for permission as a whole. Nevertheless, every ground properly before HHJ Walden-Smith was regarded as totally without merit, and the impugned order could properly have been made in relation to those grounds. No useful purpose would be served by allowing judicial review merely to enable a renewed application based on grounds incapable of success.

5. The court criticised the lack of promptness but did not need to determine whether the claim was time-barred. The claim was unsuitable for permission on its merits.

• County Court: the claimant’s claim against Trinity Hall Association and its secretary was dismissed after a one-day hearing on 23 November 2021.
• County Court appeal decision: HHJ Walden-Smith refused permission to appeal on most grounds, marked them totally without merit and excluded oral reconsideration, but granted permission and allowed a limited appeal concerning one procedural marking on 5 September 2022.
• High Court (Administrative Court): judicial review permission was refused.