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

The Court of Appeal granted permission to appeal and allowed the appeal against the Deputy High Court Judge's refusal to renew permission for judicial review. The essential errors were (i) the Deputy Judge proceeded on the mistaken basis that HHJ Baucher had refused to extend time when her order in fact granted an extension but refused the substantive appeal, and (ii) failure to recognise and apply the correct legal analysis of defective service and the procedural route in CPR Part 11. The court held that proceedings that have been properly issued do not "cease to exist" by reason of defective service, that a defendant wishing to challenge jurisdiction on that basis should ordinarily proceed under CPR Part 11 (file an acknowledgement of service and apply within the rule time limit), and that there had been a significant denial of the appellant's right to an oral hearing. The court concluded that Avent 2 and subsequent steps were legally ineffective (but not to be described as a nullity) and that the appellant must be given the opportunity of a hearing to set aside those orders and pursue his rights.

This is an appeal from a Deputy High Court Judge's decision refusing renewal of permission for judicial review of the County Court at Central London's handling of an appellant's Part 7 claim and related applications.

Background and procedural history:

• The appellant, an Iraqi national, prosecuted privately allegations against a third party; the Crown Prosecution Service (CPS) took over and then discontinued the prosecution and offered no evidence under section 17 of the Criminal Justice Act 1967. The appellant sought judicial review of that discontinuance in 2019 but permission was refused.
• In July 2020 the appellant issued a Part 7 claim against the CPS seeking substantial damages. The Claim Form named the CPS and gave the Petty France address but did not expressly name or address the Government Legal Department (GLD) as the solicitor acting for the Crown. Administrative failings and confusing court file entries followed.
• Two apparently inconsistent strike-out orders of District Judge Avent were recorded (referred to as Avent 1 and Avent 2). Avent 2 struck out the claim a second time and generated a series of events and applications which the court found to be legally ineffective because they were premised on the mistaken belief that Avent 2 was operative.
• The appellant pursued appeals and requests for oral hearings which, the Court of Appeal found, were repeatedly mishandled or not listed by the County Court. At a hearing on 27 May 2022 HHJ Baucher refused permission to appeal on the basis that the proceedings had not been properly served, treating service as determinative of whether "the claim exists" and refusing permission on case-management grounds after an ambush submission by CPS counsel that the proceedings had never been served correctly.
• The appellant issued judicial review proceedings against the County Court; on renewal the Deputy High Court Judge dismissed the application and certified it totally without merit, proceeding on the evident mistake that HHJ Baucher had refused to extend time rather than having extended time but refused the substantive permission.

Issues framed:

• Whether the Deputy Judge erred in law by misunderstanding HHJ Baucher's order and refusing renewal on that basis.
• Whether defective service meant the proceedings "did not exist" and the correct procedure for disputing jurisdiction (CPR Part 11).
• Whether the appellant was denied a fair hearing by repeated refusals or failures to list oral hearings, and whether that amounted to an arguable procedural irregularity justifying judicial review (Sivasubramaniam principle).
• The legal status of Avent 2 and consequent steps: nullity, ineffective, or otherwise.

Court's reasoning and conclusions:

• The court emphasised that proceedings properly issued exist notwithstanding defects in service; defective service does not extinguish proceedings. A defendant wishing to dispute jurisdiction or argue the court should not exercise jurisdiction should ordinarily follow CPR Part 11 (file an acknowledgement of service and apply within 14 days), and the absence of such steps by the CPS was legally significant.
• The court relied on authorities (including Hoddinott and Caine) to hold that CPR Part 11 is the correct procedural route in this type of dispute and that a court has a range of case-management remedies (including dispensing with service retrospectively, extending time for service, or orders under CPR 6.15) rather than an automatic conclusion that the claim "does not exist."
• The court held that there had been a sustained failure by the County Court to give the appellant the oral hearing to which he was entitled; the cumulative procedural errors and the ambush at the HHJ Baucher hearing made the denial of a fair hearing arguable and, on the facts, established.
• The court explained that Avent 2 and subsequent steps were legally ineffective unless and until set aside, but should not be labelled simply a nullity; Majera was applied to clarify that unlawful orders remain effective until set aside by a court of competent jurisdiction.
• The Deputy Judge's decision was quashed; permission to appeal was granted. The Court of Appeal invited the parties to agree a practical course (including setting aside Avent 2 and listing the 3 March 2021 application for hearing), and directed the parties to respond by 23 February 2024.

Appeal allowed. The Court of Appeal granted permission to appeal and quashed the Deputy High Court Judge's decision because he proceeded on a fundamental misunderstanding of HHJ Baucher's order and failed to apply the correct legal principles on defective service and CPR Part 11. The court found that the appellant had been denied a fair opportunity to be heard and that Avent 2 and subsequent steps were legally ineffective; the appellant must be given an oral hearing and the parties were directed to consider a practical route to set aside those steps.

This Court of Appeal decision arose from a renewal application considered by a Deputy High Court Judge on 14 December 2022 (decision refusing renewed permission and certifying the application totally without merit). The underlying matter included a hearing before HHJ Baucher (27 May 2022) and the earlier High Court judicial review refusal (Cheema-Grubb J refused permission, 18 March 2020). The cover shows the appeal comes from the Administrative Court (Mr David Lock KC) [2022] EWHC 3583 (Admin).