Rezq Allah Koro, R (on the application of) v County Court at Central London

Properly issued and constituted proceedings exist despite defective service or a failure to serve them in time. A defendant wishing to rely on defective service to dispute the court’s jurisdiction must ordinarily use Part 11 of the Civil Procedure Rules 1998.

A person affected by an order made without notice or a hearing must have a fair opportunity to seek its variation or discharge. At first instance, the right to an oral hearing may be denied only for exceptional reasons. Judicial review may challenge a circuit judge’s permission decision where a procedural irregularity arguably amounts to denial of a fair hearing.

An erroneous court order should not be described as a nullity. Unless set aside, it remains in place, although a second order purporting to strike out an already-struck-out claim is legally ineffective.

The appellant sought judicial review of a circuit judge’s refusal of permission to appeal in county court proceedings against the Crown Prosecution Service. The county court had twice purported to strike out the claim on its own initiative. It repeatedly failed to hear the appellant’s timely applications to set aside those orders and later refused permission to appeal after accepting, without advance notice, the CPS’s submission that defective service meant the proceedings did not exist.

A Deputy High Court Judge refused renewed permission for judicial review and certified the application as totally without merit: [2022] EWHC 3583 (Admin). He mistakenly believed that the circuit judge had refused an extension of time, although her order showed that she had granted it.

The Court of Appeal considered defective service, the right to challenge orders made without a hearing, appeals in the absence of a sealed order, the legal status of the second strike-out order, and whether the exceptional judicial review jurisdiction was engaged.

1. Permission to appeal was granted and the appeal was allowed. The Deputy Judge’s decision was quashed and permission to bring judicial review proceedings was granted. His decision rested on the fundamental factual mistake that the circuit judge had refused an extension of time, when she had granted it. The appellant had incontrovertibly been denied a fair hearing: paras 84–86.

2. Properly issued and constituted proceedings exist whether or not they have been properly served. Defective or late service does not cause proceedings to cease to exist. The contrary submission accepted by the circuit judge was axiomatic error: para 64.

3. In the absence of an applicable alternative procedure, Part 11 of the Civil Procedure Rules 1998 governs a defendant’s attempt to dispute jurisdiction because of defective service. The CPS should have filed an acknowledgment of service and made an evidence-supported application within the prescribed period. Even if another route existed, it could not be assumed that the court would decline jurisdiction. Available case-management measures included dispensing retrospectively with service, extending time to serve an amended claim form, or making an order under rule 6.15: paras 65–69; Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203 applied.

4. Allowing the CPS to advance the point without an acknowledgment of service, an application, a skeleton argument or proper advance notice was an unacceptable and unfair litigation ambush: para 70.

5. The opportunity to challenge an order made without notice or a hearing is fundamental to procedural fairness. At first instance, a person whose civil rights are being determined is entitled to an oral hearing absent exceptional reasons. A judge cannot dismiss an application without giving that person a fair opportunity to present oral argument: paras 71–76; Labrouche v Frey [2012] EWCA Civ 881 and Pontanina v Pontanin [2024] UKSC 3 applied. The county court’s prolonged failure to list the application to set aside the first strike-out order was an unconscionable denial of fair procedure.

6. An appeal may lie from a judicial determination even where no sealed order exists. What matters is that there has been a decided result or conclusion: paras 77–78; Anwer v Central Bridging Loans Ltd [2022] EWCA Civ 202 followed.

7. The second strike-out order was legally ineffective because the claim had already been struck out. It was not a nullity, however, and it and the consequential decisions remained to be set aside: paras 79–82. The court directed that the first set-aside application be listed and proposed that the second strike-out order and all steps flowing from it be set aside. It adjourned consequential disposal to allow the CPS to consider agreeing that course: paras 85–91.

1. Court of Appeal (Civil Division): Granted permission to appeal, allowed the appeal, quashed the Deputy High Court Judge’s decision and granted permission to bring judicial review proceedings: [2024] EWCA Civ 94.
2. High Court, Administrative Court: The Deputy High Court Judge refused the renewed application for permission to seek judicial review and certified it as totally without merit: [2022] EWHC 3583 (Admin).
3. County Court at Central London: A circuit judge refused permission to appeal after granting an extension of time. She accepted that defective service meant the proceedings effectively did not exist. That decision arose from a second, legally ineffective strike-out order.