Paul Batt, R (on the application of) v The County Court at Central London

Judicial review of a refusal of permission to appeal is available only in very rare cases. A mere error of law or fact is insufficient. Relief may be granted where the appellate judge fundamentally departs from the judicial process by failing altogether to examine and determine a pleaded ground which the judge considers necessary to address. Such a failure frustrates the appeal process and may amount both to jurisdictional error in the narrow pre-Anisminic sense and to a denial of the right to a fair hearing.

The claimant was subject to mandatory injunctions made by the County Court requiring him to remove belongings from a loft and prohibiting further storage there. The District Judge had relied on section 9A of the Landlord and Tenant Act 1985. The claimant sought permission to appeal, arguing that section 9A provided no jurisdiction to grant mandatory injunctions against a tenant and raising related grounds concerning the demise, derogation from grant and remedial works.

The Circuit Judge refused permission on those grounds but granted permission on a separate ground. The claimant then sought judicial review, alleging that the Circuit Judge had failed to adjudicate on his pleaded grounds and had denied him a fair hearing.

1. The claim succeeded. The refusal of permission to appeal on Grounds 1 to 4 was quashed. The matter was remitted for fresh consideration of permission to appeal on those grounds before another Circuit Judge.
2. An injunction requires the party seeking relief to establish a legal or equitable right meriting protection and a legal or equitable principle justifying the injunction: Broad Idea International Ltd v Convoy Collateral Ltd and In Re G.
3. The jurisdiction to review a final refusal of permission to appeal is highly attenuated. It is confined to very rare cases involving jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity amounting to a denial of a fair hearing. A decision which is merely wrong, even extremely wrong, is insufficient.
4. An appellate judge must engage with the substance of any pleaded ground which the judge finds it necessary to address and must make an effective determination of it. The judge need not determine every argument or every ground if one ground disposes of the matter, but cannot substitute a different ground and decide that instead.
5. The Circuit Judge did not determine the actual jurisdictional issue raised by Ground 1: whether section 9A supplied a lawful basis for mandatory injunctions against the tenant to facilitate the landlord’s implied covenant. Instead, he hypothesised a narrower order based on the tenant’s obligations and refused permission on that basis. That reasoning addressed a different issue, one not pleaded as the basis of the injunction.
6. The Circuit Judge also left in place an order applying to all belongings, despite having indicated that an order covering all belongings might be too wide. The failure to examine and determine Ground 1 was a fundamental departure from the correct procedure and frustrated the judicial process. It therefore constituted jurisdictional error and a substantial denial of the claimant’s right to a fair hearing.
7. The same failure engaged Article 6(1) of the Convention, which requires effective determination of essential issues submitted to the court’s jurisdiction.

The judgment itself was a first-instance judicial review of a County Court refusal of permission to appeal.

• County Court at Central London: the District Judge made the injunctions on 19 July 2023.
• County Court at Central London: HHJ Gerald refused permission to appeal on Grounds 1 to 4 on 4 September 2024, while granting permission on Ground 5.
• Administrative Court: the refusal on Grounds 1 to 4 was quashed and remitted for fresh consideration before another Circuit Judge.