Denise Bell-King, R (on the application of) v Network Rail Infrastructure

The court refused the claimant's renewed application for permission to apply for judicial review of His Honour Judge Lethem's decision dated 22 July 2021. The principal legal principles applied were the promptness and three-month time limit for judicial review claims, the narrow scope for judicial review of County Court decisions (absent exceptional circumstances), and the established Denton approach to non-compliance with case management orders. The judge found the application out of time, that no arguable public law error or denial of a fair hearing had been shown, and that Network Rail Infrastructure Limited was not the proper defendant to any challenge to the County Court decision. The claimant's repeated non-compliance with court orders and directions was a further reason to refuse permission and to order costs against her.

This is a renewal application in the Administrative Court by Ms Denise Bell-King seeking permission for judicial review of a County Court judge's decision communicated on 22 July 2021 that her personal injury claim had been struck out for failure to comply with an 'unless' order to file and serve a transcript. The personal injury claim arose from a trip at London Waterloo Station on 4 January 2017. The defendant in the underlying tort claim was Network Rail Infrastructure Limited, which admitted primary liability but contested causation. The claimant pursued a protracted series of case management and appeal proceedings in the County Court and failed repeatedly to comply with multiple unless orders requiring schedules of loss, authorities for medical records, witness statements and a transcript.

The claimant sought judicial review relief and complained about (i) the failure to obtain a full transcript of the relevant County Court hearing, (ii) alleged denial of a fair hearing, and (iii) alleged failure to make reasonable adjustments under the Equality Act 2010. She also challenged a summary costs order made against her by Deputy High Court Judge Dexter Dias KC.

The judge framed the principal issues as:

• whether the renewed application was filed promptly and within the three-month statutory period;
• whether there was an arguable public law error, procedural irregularity or denial of a fair hearing amounting to the exceptional circumstances necessary to permit judicial review of a County Court decision;
• whether Network Rail was a proper defendant to any public law challenge; and
• whether costs orders, including the earlier summary assessment and costs of the renewal hearings, should stand.

The court concluded that (i) the impugned decision dated 22 July 2021 was the relevant decision for time, the claimant's judicial review claim was filed many months late with no adequate explanation and no extension was sought; (ii) there was no demonstrated jurisdictional error or procedural irregularity on the part of HHJ Lethem that would meet the high "exceptional circumstances" threshold identified in the authorities (including R (Koro) v County Court at Central London and the established narrowness of review in Sivasubramaniam, Gregory and Strickson); (iii) the claimant bore responsibility for ensuring the correct transcript was obtained and had not taken timely steps to rectify an incomplete transcript; and (iv) Network Rail was not the correct defendant to a public law challenge to a County Court judge's decision. For these reasons the application lacked a realistic prospect of success and permission was refused. The earlier costs order was upheld and an additional costs award was made against the claimant in respect of costs caused by her repeated non-compliance.

The renewed application for permission to apply for judicial review is refused. The judge held that the claimant's challenge was out of time, did not disclose any arguable public law error or denial of a fair hearing that would amount to an exceptional circumstance permitting review of a County Court decision, the claimant had primary responsibility for complying with the 'unless' order (including obtaining the correct transcript), Network Rail was not the proper respondent to the impugned decision, and the claimant's persistent non-compliance justified costs against her. The existing summary costs order was upheld and additional costs were awarded to the defendant for the renewal hearing preparation and attendance.