Judicial review of a closed minded appeal

Sharing, R (on the application of) v Preston County Court [2012] EWHC 515 (Admin)
[Updated 20 June 2012 to make clear this was a permission to appeal decision, not an appeal hearing]

This is by any measure an unusual case. It is a judicial review of the conduct of an application for permissiono to appeal to a circuit judge in an unlawful eviction and harassment claim. What is more, it is a successful claim for judicial review (sorry to spoil the tension).

Ms Sharing was a tenant of a Mr Tomlinson. She had brought a claim for unlawful eviction, breach of quiet enjoyment and harassment. He counterclaimed for rent owing. At first instance trial, the main issue was the Claimant’s allegation that:

On 15 December 2009, the claimant having fitted bolts to the door, the defendant attempted to gain entry using his own key and, finding that the way was barred, barged through and broke the bolts off the door. Following upon that, the police attended and, according to the claimant, the police suggested that she would have to leave the flat as she was not able to pay the rent. Accordingly, she cleared the property of her belongings and left. That last incident and its aftermath appears to be the allegation of unlawful eviction.

Mr T denied this and his evidence was supported by a Ms Morley, a tenant of another of the flats, to the effect that he had not forced his way in and that Ms S had left of her own accord. A police officer, WPC Dempster had submitted a witness statement and her notebook was in the trial bundle, but she was not at the trial. Mr T told the Court that a witness summons had been served ‘by his wife’ he thought, but WPC Dempster had not attended.

The judge then asked when it had been served and Mr Tomlinson said he did not know, but he had got a message that morning to say she was unavailable. The judge then said that if he had issued a witness summons and could prove that it had been served, that would be reasonable grounds for an adjournment. Mr Tomlinson then said that he understood that she was caught up in an inquiry, or she is on leave. The judge then pointed out that if there was a witness summons which she had received but had not attended then that would potentially be a contempt of court, at which point Mr Tomlinson said that he left it to his lawyer and did not know the ins and out. Mr Tomlinson then said that he was happy to go ahead with the statement.

At the trial, the District Judge rejected the of Ms S. He did not accept either the Claimant’s or Defendant’s accounts where unsupported by other evidence, but found against Ms S on the issue of payment of a deposit, undermining her credibility. The Judge also accepted Ms M’s evidence as being true.

The witness statement of Tracy Morley was to the effect that the defendant had asked her to accompany him to the claimant’s flat because he wanted to speak to her about the tenancy. She was present when Mr Tomlinson knocked on the claimant’s door, there was no answer but there was shouting from the inside. After a couple of knocks, the claimant and her boyfriend flung open the door and screamed abuse at the defendant and herself. She also claimed in her evidence, in her witness statement, that on previous occasions the claimant had indicated that she had intended to leave the flat and make a claim against the defendant for illegal eviction, that it was easy and she had done it before.

The hearsay evidence in WPC Dempster’s statement was to the effect that she had not told the Claimant to leave the flat and there were others present who had also told her she didn’t have to leave the flat.

Ms S’ claim was dismissed and Mr T’s counterclaim allowed.

It then came to light that WPC Dempster had not been served with a witness summons and was unaware of the hearing. Ms S sought permission to appeal to a Circuit Judge on grounds of new evidence, including a further statement by WPC Dempsey:

It included evidence in paragraph 3, to which I have already referred, that WPC Dempster had not been witness summonsed but had been available to attend court if so required on the date of the hearing before the district judge. In addition, in paragraph 5, she refers to the notes which were in the notebook which was before the district judge as part of the bundle. She says that those notes were made by her during an interview she had with the defendant, in the presence of a female who at the time she believed to be the defendant’s partner, because of the way that she related to one another. They did not appear to her to act like a landlord and his tenant, but she now understands that the female was in all likelihood the tenant of one of the other flats at the premises, namely Tracy Morley.

At paragraph 6, she says that the defendant admitted to her that he had let himself into the claimant’s flat that evening using his own key, claiming that he had a right to do so because of rent that was overdue and owing to him. He had admitted that he had broken a chain fastening which he said was poorly affixed, and claimed that it was his door that had got damaged. WPC Dempster goes on in her witness statement to say that she remembered seeing a bolt on the door of the claimant’s flat which clearly had been forced, but it was very small and would have been more suited to securing a rabbit hutch rather than a main door to a flat. They were fixed with very small, short screws which had been forced away from the door and the door frame. Quite probably, the door could have been opened and the bolt forced away from the door and door frame without the person opening the door even knowing that had happened.

Despite this evidence, permission to appeal was refused.

The Judge on the permission application, HHJ Appleton, took the firm view from the start that:

“The judge is patently saying, ‘I have seen this lady in the witness box and I do not believe her’. There we are. This is not a case where permission to appeal should be given.”

On the fresh evidence, he said:

“It is suggested that the second statement of PC Dempster, which was taken long after the events in question and after, indeed, the trial, makes a crucial difference. In my judgment, it does not. I have read the transcript of the proceedings carefully and it is plain to me, and it would be plain to any appeal court looking at this matter independently, that what happened is the claimant’s case was destroyed, A, because of her own dishonesty in relation to what she did with the deposit that she obtained from her grandparents and that was exposed quite clearly as being dishonest conduct and, secondly, the evidence of Tracy Morley was important in completely devastating the claimant’s case.

This despite the clear implications that the second witness statement of WPC Dempsey had for the credibility of both Mr Tomlinson, and, seemingly crucially, Ms Morley.

Permission to appeal was refused and Ms S sought judicial review.

The criteria for judicial review of a hearing and a Judge’s decision are set out in The Queen on the application of Strickson v Preston County Court & Ors [2007] EWCA Civ 1132, to the effect that the Administrative Court must be “vigilant to see that only truly exceptional cases — where there has indeed been a frustration or corruption of the judicial process — are allowed to proceed to judicial review”.

Ms S argued:

i) Mr T had plainly told a lie in the first trial about the whereaboouts and availability of the WPC. The second statement of the WPC made this plain and should therefore have been admissible as new evidence on that basis alone.

This was not accepted. Although not expressly addressed by the Circuit Judge, the district Judge has clearly formed an adverse view on the honesty of both Ms S and Mr T, unless supported by other evidence, so it was hard to see that a further lie by Mr T would affect the decision over much.

ii) The Circuit Judge had ‘stepped over the line’ to the extent that the judicial process was frustrated or corrupted, because of the way in which he conducted the hearing. The Judge did not permit Counsel for the Claimant to develop her main point, the significance of the new statement of the WPC:

The learned judge repeatedly said that the case had been won or lost because the district judge had not believed the claimant, essentially because of the lies she must have told in relation to the deposit and also because of the fact that Ms Morley’s evidence was believed by way of contrast.

It is said that the learned judge has, effectively, revealed to the claimant — and to any fair-minded or interested party — that he had already, finally, made up his mind about the case and that it was not going to go any further, and that the aggressive way in which he interrupted the claimant’s counsel repeatedly and failed to permit her to develop the point that she wished to make evidences, or gave rise to, an apparent bias on his part.

The high point of that, although it is by no means the only place where he says this, is that when Miss Cawsey for the claimant explicitly asked that the fresh evidence of WPC Dempster be brought into court he said:
“I am not interested in fresh evidence, fresh evidence is very rarely admitted…and, frankly, you are grasping at straws in this regard. You have already lost the case on the basis of the judge’s views about credibility.”

A little further on, having said that he had read everything in the appeal bundle, he said this:
“It does not make a crucial difference, you lost because the judge did not believe your claimant.”

However, the point that counsel for the Claimant was trying to raise was that the WPC now raised issues of credibility about not just Mr Tomlinson’s account but that of Ms Morley, whose evidence the District Judge had accepted as reliable.

Therefore Ms S argued that the way the Circuit Judge had dealt with the issue of new evidence was in itself sufficient to quash the decision “on the basis that it evidenced a total failure to enquire or adjudicate upon a matter which it was his unequivocal duty to address”.

This was rejected. The circuit Judge did address the issue of fresh evidence, the further evidence of the WPC and the importance to the case. “He did articulate why it was that he was ruling against that fresh evidence because of, firstly, her own dishonesty in relation to deposit and, secondly, the evidence of Tracy Morley whose evidence was devastating of the claimant’s case.”

iii) Ms S argued that the way in which the Circuit Judge conducted the hearing:

the way in which he made plain as plain could be to the claimant and to any impartial bystander that he was not minded to have regard to fresh evidence because of his very firm and fixed view that she had lost the case because the district judge found her to be a liar and that she had lost the case because the district judge believed Ms Morley — that this was a judge who was not minded to give anything like a fair consideration to the claimant’s application.

The Admin Court ‘with very great hesitation and regret’ agreed with this argument:

I have been forced, by reading the transcript of the hearing, to conclude that His Honour Judge Appleton did act in such a way that a fair-minded and independent bystander would conclude that he had finally and firmly made up his mind from the outset of the application that he was going to refuse it, that he was going to refuse to admit the fresh evidence of WPC Dempster, and that his repeated interruptions of the claimant’s counsel and the way in which he focused on the way in which the district judge had decided the case, was the clearest possible evidence of that apparent bias.

The Circuit Judge’s decision to dismiss the appeal was quashed and the matter remitted to the County Court for rehearing in front of another Circuit Judge (HHJ Appleton had retired anyway).

On costs, the position wasn’t clear. Whether costs could be sought against the County Court was left to written submissions, if advised, as no order would have left Ms S exposed to a statutory charge for the legal aid costs should her appeal be successful.

Comment
The threshold for JR’ing a Court’s decision is high and credit to Counsel James Stark and Ms S’ representatives for pushing ahead with this claim. It is interesting (and potentially useful to others) that the point of success in this claim was the Circuit Judge’s handling of the hearing, the interruption and refusal to allow Ms S’s counsel to develop her point from the outset. The ‘fair minded and independent bystander’ test used here should clearly be in the mind of any representatives who feel that they have been effectively rejected without serious hearing on appeal – it was not the CJ’s handling of the new evidence or, at least in part, the arguments for it that was found to be sufficient to amount to ‘a frustration or corruption of the judicial process.

Posted in FLW case note, Housing law - All, Possession, Unlawful eviction and harassment. RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

9 Comments

  1. Posted 20/06/2012 at 9:33 am | link to comment

    perhaps pedantic, but there is no rank of “WPC” any more.

    All the little boy cops and all the little girl cops are all now “PCs”.

    • Posted 20/06/2012 at 10:22 am | link to comment

      Just adopting the term used in the judgment. I take the point, but you had better let the Admin Court know…

  2. chief
    Posted 20/06/2012 at 11:33 am | link to comment

    You’d better let the police know too. Quite a few that I deal with still use WPC and I’m certainly not going to argue with them…

  3. JS
    Posted 20/06/2012 at 12:41 pm | link to comment

    Just to clarify .It was a judicial review because HHJ Appleton refused permission to appeal . Had he entertained the appeal then obviously we would have had the opportunity for a second appeal under CPR 52.13

    • Posted 20/06/2012 at 12:57 pm | link to comment

      Thanks JS, I realise I didn’t make that clear. Will do so.

  4. JS
    Posted 20/06/2012 at 1:59 pm | link to comment

    We have applied for costs but Wilkie J has not ruled on the question when we last heard

  5. Posted 20/06/2012 at 10:45 pm | link to comment

    I’m sure there are some people out there who still refer to women sailors as “WRENS”.

    I consider this unhelpful.

    • Posted 20/06/2012 at 11:27 pm | link to comment

      And that is a fair point. We won’t follow the judgment’s description if this comes up in the future.

    • chief
      Posted 21/06/2012 at 6:32 pm | link to comment

      True, and for what it’s worth, I agree up to a point. My earlier comment was perhaps a bit flippant, but in all seriousness what should I do when a police officer refers to herself as WPC? Tell her that she is wrong?

      I suspect I still sound like I’m being silly, but I don’t mean to be. I was quite worried about this when I saw it in a witness statement recently and was very tempted to “correct” WPC to PC, but I’m not sure it’s for me to do so if that is how a female constable chooses to refer to herself. When I ring up, I ask for PC X and then have terrible anxiety that I might be causing offence.

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  1. [...] And… it is not often that we see cases of judges being subject to judicial review which are successful. Nearly Legal, a leading housing law blog, comments on such a case: Judicial review of a closed minded appeal. [...]

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