Strickson, R (on the application of) v Preston County Court & Ors

In this case we are required to revisit the circumstances in which the High Court may properly entertain a judicial review of orders made by a judge in the county court. The appellant appeals, with permission granted by the judge below, against the judgment of Goldring J given in judicial review proceedings on 21 December 2006, by which he declined to quash a decision made by HHJ Appleton in the Preston County Court on 7 July 2005. By that decision, HHJ Appleton declined to grant permission to the appellant to appeal to him against the decision of District Judge Law given on 17 March 2005, by which he struck out the appellant’s claim brought against the Chief Constable of Lancashire and the Blackburn & Darwen Borough Council.

By that claim the appellant had sought declarations and damages in relation to the death of his daughter Melissa Jane on 10 October 2001, when she was thirteen years of age. Goldring J held that both the district judge and the county court judge had reached wrong conclusions, but he declined to grant relief by way of judicial review.

The particulars in the county court contain a lengthy and detailed factual narrative. Mr Knafler for the appellant, in his skeleton argument paragraph 5(1), is at pains to emphasise the fact that the details there set out are derived, or largely derived, from witness statements taken by the police and from social services files, and not from later statements compiled for the purpose of civil proceedings. While the length and detail of the particulars of claim was no doubt entirely appropriate for the case -- and I certainly intend no criticism of it -- a shorter summary will suffice for present purposes. Such a summary has been helpfully provided by Miss Sutton, a solicitor who made a witness statement dated 18 January 2006 in the judicial review proceedings, on behalf of both respondents. I repeat it here with some adaptations.

The claim arises out of the tragic death of Melissa Jane Strickson who was born on April 30^th 1988 and died on October 10^th 2001, aged 13 years. Melissa Strickson had a history of absconding from home or school. At various times complaints were received that she was staying at or visiting the home of one or more inappropriate persons. At times she was clearly involved in some degree of criminal or delinquent activity. Complaints about these matters were received by the local authority. The police were also aware of the broad nature of her activities and they had some degree of involvement with her.

On October 8^th 2001 she and her younger sister both went missing from home. The police were notified. Certain enquiries were made but to no avail. It would appear that during the night of October 9^th and the morning of October 10^th 2001 Melissa, together with her sister and two other girls, was at the home of two persons, Sally Corkhill and Lee Harrison. When at the property Melissa took certain drugs, believed to have been prescribed for Sally Corkhill, and as a consequence she died.

The appellant issued proceedings against the local authority and the chief constable. As against the local authority, he alleged that there was a failure on their part to use their childcare powers and to perform their duties under the Children Act 1989. It was said that she was beyond the control of her family. The case put is that the authority were negligent, in breach of statutory duty, and in breach of certain Articles of the European Convention on Human Rights. Negligence was also alleged against the police. In particular, it is said that they failed adequately to search the home of Sally Corkhill. Had they done so, Melissa’s presence there would have been revealed or discovered, and her life maybe saved. Other allegations are made, into which it is not necessary for present purposes to go.

It is right to say that the allegations against both the local authority and the police are, as a matter of fact, vigorously denied. Defences were filed by both defendants. As well as denying the claims on a factual and legal basis, they also, within their defences, took the point that the claim form had not been served in time.

There ensued a complex procedural history which, as Goldring J was to observe (judgment paragraph 8), reflects badly on the appellant’s solicitor’s conduct of the case. The claim form was issued on 9 October 2002, the day before expiry of the limitation period for the human rights claims. There followed a whole series of successive applications and orders for extensions of time within which to serve the claim form. The time prescribed by the rules is four months from the date of issue (CPR 7.5). At length, upon a further application, District Judge Jones made these orders on 22 September 2003:

“1)

The time for service of the claim form is extended to 4pm on the 23 December 2003.

2)

Any further application is to be made on notice to the other parties.

3)

A Copy of the claim form and all applications and orders to be sent by the claimant to the Defendant by 30 September 2003.”

On 2 October 2003 the appellant’s solicitors purported to send the claim form to the defendant’s solicitors by way of service, but apparently the wrong claim form was sent. A copy of the correct form was sent on 24 November 2003. It was later to be contended before District Judge Law that the supply of the claim form on that date constituted good service, pursuant to District Judge Jones’ order. District Judge Law held that it did not, for reasons given at paragraphs 16 to 21 of his judgment. Essentially they were to the effect that on later dates the appellant and his solicitors made yet further applications for extensions, and the court made orders upon them. That was inconsistent with the claim form having been validly served on 24 November 2003. HHJ Appleton was to uphold this decision of District Judge Law, in essence for the same reasons. Goldring J, before whom Mr Knafler accepted (see paragraph 40 of the judgment) that the matter was very much a question of impression, held (paragraph 15) that the judges below, in the county court, were entitled to conclude as they did on this issue. It is urged in this court (paragraph 9 of Mr Knafler’s skeleton) that Goldring J was wrong on this point, and it is convenient to deal with it now. For my part, I cannot see that he was.

I return to the procedural narrative. After a further extension of time had been granted up to 23 March 2004, District Judge Duncan made an order on 22 March 2004 as follows:

“The time for service of the claim form is extended until the expiry of 35 days following receipt by the claimant’s solicitors of the documents requested of the defendants in this order.”

That was amended on 23 July 2004 so as to require the provision of certain documents by the defendant’s solicitors to the appellant’s solicitors by 16 August 2004, and time for service of the claim form was extended until 35 days following the document’s receipt. These documents were provided on 13 August 2004, and so the appellants had until 21 September 2004 to serve the claim form.

On 16 September 2004, of the court’s own motion, District Judge Forrester issued a document headed “Notice of Case Management Conference” which indicated that the case management conference would take place on 2 December 2004, and that the court would give further directions as to service of the claim form and the Particulars of Claim. The second point later taken before District Judge Law was that this notice implicitly granted a further extension of time for service of the claim form, at least until 2 December 2004. District Judge Law said there was no question of that. HHJ Appleton agreed. The file had been put before District Judge Forrester because the case was not proceeding, and District Judge Forrester was dealing with it as a matter of case management. He in no way varied the earlier order. Goldring J (paragraph 24) considered that these conclusions could not be criticised; again, I agree.

In the event the claim form was not served by 21 September 2004, the date on which the stipulated 35 days expired. On 11 October 2004 solicitors for the chief constable indicated that unless the appellant’s solicitors now complied with the order of 23 July 2004 they would apply to strike out the claim. On 13 October 2004 solicitors for the local authority indicated their view that because of the appellant’s default, the claim in fact already stood struck out, but notwithstanding that view, if they did not hear from the appellant’s solicitors within fourteen days they would apply for a strike out. On 29 October 2004 the appellant’s solicitors informed the defendants that particulars of claim would be served the following week. On 4 November 2004 particulars of claim, but no claim form, were sent to the defendants. On 11 November 2004 solicitors for the authority asked for a 28 day extension of time within which to file the defence. On 23 November 2004 solicitors for the chief constable referred to an agreement made by telephone for an extension of time within which to file their defence until 14 December 2004. The case management conference was adjourned by consent, and consent orders for extension of time for the defences were made. Then on 10 December 2004 the chief constable applied for an order or declaration that the validity of the claim form had expired prior to its service, and that the proceedings were null and void. On 25 November 2004 the local authority made a like application. And so at length the matter came before District Judge Law on 17 March 2005. He held that the claim form had been served on 4 and 8 November 2004 upon the council and police respectively, thus 44 days and 48 days late, taking the last date for service as being 21 September 2004.

The district judge rejected (paragraph 34) an argument to the effect that the defendants had waived any irregularity regarding service of the claim form by their own conduct, notably by seeking time to consider their position and to file and serve their defences. And so the district judge struck out the claim and declared that the proceedings were null and void. He considered that the appellant’s failure to abide by the time limit for service was “blatant” (paragraph 32); he stated and repeated (paragraphs 5 and 31) that since the claim was issued only one day before expiry of the limitation period, the appellant and his solicitor should have been especially at pains to comply with applicable time limits. I should add, and I have already noted this in passing, that the district judge’s statement that the claim form had been served on dates in November 2004 is not accurate. Only the particulars of claim were served.

The appellant sought to appeal to the circuit judge, and the matter came before HHJ Appleton on 7 July 2005 as an application for permission to appeal from District Judge Law. Mr Knafler maintained all the points he had taken before the district judge, but the argument was in particular focussed on the point as to waiver. Mr Knafler relied on the decision of this court in Uphill v BRB [2005] 1 WLR 2070. That case had not been cited to the district judge. That is hardly a criticism, since the judgment was not handed down until 3 February 2005, only six weeks or so before the proceedings in front of the district judge. In Uphill it was contended that a defendant in the county court had waived his right to challenge the validity of a claim form. In the acknowledgement of service his solicitors, while indicating an intention to contest the whole of the claim, did not tick the box which would signify an intention to contest the court’s jurisdiction. Three weeks later they applied for an order setting aside the purported service of the claim form. This court decided the waiver issue by reference to CPR part 11(5), which provides:

“If the defendant – (a) files an acknowledgement of service; and (b) does not make such an application within the period specified in paragraph (4), he is to be treated as having accepted that the court has jurisdiction to try the claim.”

Dyson LJ held (paragraph 34) that:

“…the issue of waiver is clearly resolved by CPR Pt 11.”

And paragraph 35:

“[T]here can be no doubt that, on the facts of the present case, the effect of CPR r 11(5) is that the defendant is to be treated as having accepted that the court has jurisdiction to try the claim.”

In the present case, as Goldring J noted at paragraph 32 of his judgment, the council filed an acknowledgement of service on 11 November 2004 indicating an intention to defend but no intention to contest the jurisdiction. The chief constable did not file an acknowledgement of service at all. HHJ Appleton considered that Uphill was distinguishable, and that District Judge Law had been right to reject the waiver argument. He agreed with the district judge on all the other points, and so he refused permission to appeal. By force of section 54(4) of the Access to Justice Act 1999 that refusal of permission to appeal was the end of the road for the appellant in relation to any statutory right of appeal. There was and is no question of an appeal to this court from HHJ Appleton. The appellant’s only recourse, if it was available to him, was to seek judicial review of HHJ Appleton’s decision in the High Court. That is what he did.

Before addressing the critical question whether judicial review relief should be granted, Goldring J expressed clear views as to the legal merits of the conclusions of the district judge and the circuit judge. As I have already indicated, on some points he agreed with them. He agreed that there was no service of the claim form on 24 November 2003, and that no extension of time had been granted by the notice dated 16 September 2004. He dealt with two other matters before confronting the waiver issue. He accepted judgment (paragraph 56) a submission advanced by Mr Lewis QC (who appeared as he does today for the Secretary of State as third interested party) to the effect that the district judge could in any event have struck out the claim form on his own initiative under CPR part 3.3 on the ground that it was substantially out of time when served. He would of course have had to hear submissions on the point. Goldring J said in paragraph 56:

“While any waiver by the defendants would have been relevant to the exercise of the District Judge’s discretion in that regard, it would not have prevented him doing so [I interpolate that is ordering a strike out under part 3(3)]. Had the District Judge approached the matter in that way it seems probable, given the tenor of his judgment, that he would have struck the case out on that basis: that the Circuit Judge would have agreed with that decision. If that had happened the decision might well have been unimpeachable as within the court’s discretion.”

Mr Knafler, at paragraph 10(1) of his skeleton and in brief submissions addressed to us this morning, said that the district judge could not possibly have taken such a course if there had been waiver by the defendants because it would have been an abuse of power. I doubt whether that is so. The court’s case management powers are overarching, and it is now commonplace that the consensus of parties does not necessarily drive or determine the course of litigation. However, Mr Knafler also submitted this morning that to act under Part 3(3) would be ultra vires, given the procedural code that is established by CPR Part 11. For my part while I consider it may have been within the judge’s power to order a strike out under 3(3), I entertain very considerable doubt as to whether it would have been right to do so. At all events that was not done, nor it seems considered; and in those circumstances, as it seems to me, this issue cannot begin to drive the result of the case.

There is one more point before coming to waiver. Mr Knafler has also submitted, as he submitted before Goldring J, that the court below should have dispensed with service of the claim form under CPR part 6(9). Goldring J held (paragraph 58) that this was a matter wholly within the discretion of the court. In my judgment he was right to do so.

At length Goldring J addressed the arguments as to waiver. Here is the essence of his reasoning:

“66.

The words of CPR 11 are clear. There is nothing to limit them in the way he submits. [That is a reference to Mr Eccles’ submissions for the respondents]. The principle in Uphill is, it seems to me, clear. Although there are factual differences between it and the present case, I find it difficult to limit its ambit in the way suggested. Albeit the claim form was definitive in Uphill the position was that valid service of that claim form did not take place. Here, a draft was sent to the right person (eventually). In principle I can see no difference between invalid service and no service. In both cases the essential challenge was to jurisdiction. Such a challenge requires that the provisions of CPR 11 are complied with. I cannot see that the factual differences between the two cases affect that principle. Uphill does not ride roughshod over the CPR. It is based upon the CPR…”

“68.

In short, not only do I conclude permission to appeal should have been granted, but that on proper application of the law, the defendants’ argument on jurisdiction should not have succeeded.”

And so Goldring J proceeded to confront the question whether judicial review relief should be granted in light of all that had passed in the court below; and in particular, of course, his own conclusion that the county court should have accepted that the defendants had waived late service.

The leading modern authority on judicial review of county court decisions is the judgment of this court in Sivasubramaniam [2003] 1 Weekly Law Reports 475. There the applicant had been refused permission by a circuit judge in the county court to appeal against a decision of a district judge. He sought judicial review of that refusal. Hooper J, as he then was, dismissed the application. The appellant sought permission to appeal to this court (I should say he also had a second case, which however was held to raise no point of principle, and about which it is unnecessary to say any more).

The Court of Appeal embarked upon a detailed discussion of the background to section 54(4) of the Access to Justice Act 1999 and Part 52 of the CPR, which relates to appeals. Subject to rules of court, section 54(4) (as I have foreshadowed) bars any appeal against the decision of a court to grant or refuse permission to appeal to itself against the decision of a lower tribunal. The result is that the losing party before the district judge might seek permission to appeal to the circuit judge, as was done here; but the circuit judge’s decision on that application is not subject to any further appeal. It is plain that the legislative policy is to allow for one level of appeal only in cases to which section 54(4) applies. It was submitted for the Lord Chancellor in Sivasubramaniam that this legislative policy had to be respected when considering the judicial review jurisdiction. It should not be deployed to create a second tier or level of appeal where Parliament had decreed there should only be one. Indeed, Mr Sales for the Department went so far as to submit that section 54(4) implicitly ousted the jurisdiction of the High Court to entertain a judicial review of the circuit judge’s decision. A substantial part of the judgment of this court delivered by Lord Phillips MR as he then was, was devoted to this contention which was rejected. A county court is an inferior court created by statute. The High Court has always asserted a review jurisdiction in relation to such a tribunal. While Parliament might oust that jurisdiction, it would take “the most clear and explicit words” (see Ex parte Gilmore [1957] 1 QB 574 at 583). Section 54(4), this court concluded, was not in that category.

Mr Sales’ second submission in Sivasubramaniam was that in cases such as that before the court, judicial review permission should be refused as a matter of discretion since its grant would conflict with the policy of the statute unless there were exceptional circumstances. The court considered the position relating to the Immigration Appeal Tribunal, whose decisions refusing leave to appeal to itself were commonly the subject of judicial review, though there was a curtailment of the right of statutory appeal which could be said to be analogous to that provided for by section 54(4). The court considered (paragraph 52 of the judgment) that special factors were engaged in that instance, notably the involvement in asylum cases of fundamental human rights issues and the consequent judicial duty of anxious scrutiny. The court continued:

“53.

The same cannot be said in relation to decisions of district judges in respect of which appeals lie, if permission is given, to a circuit judge. There is a right to seek permission to appeal against such decisions, and to renew the application at an oral hearing if it is refused on paper. The decision challenged will, in this way, be open to a review by a judge. That review can consider any challenge that is made to the jurisdiction of the judge below. It can also consider the merits of any attack that may be made on the conclusions of the judge below in relation to any matter, be it fact, law or the basis upon which a discretion has been exercised. If grounds for appeal are held to exist, a full appeal will follow.

54.

This scheme we consider provides the litigant with fair, adequate and proportionate protection against the risk that the judge of the lower court may have acted without jurisdiction or fallen into error. The substantive issue will have been considered by a judge of a court at two levels. On what basis can it be argued that the decision of the judge of the appeal court should be open to further judicial review? The answer, as a matter of jurisprudential theory, is that the judge in question has limited statutory jurisdiction and that it must be open to the High Court to review whether that jurisdiction has been exceeded. But the possibility that a circuit judge may exceed his jurisdiction, in the narrow pre-Anisminic sense, where that jurisdiction is the statutory power to determine an application for permission to appeal from the decision of a district judge, is patently unlikely. In such circumstances an application for judicial review is likely to be founded on the assertion by the litigant that the circuit judge was wrong to conclude that the attack on the decision of the district judge was without merit. The attack is likely to be misconceived, as exemplified by the cases before us. We do not consider that judges of the Administrative Court should be required to devote time to considering applications for permission to claim judicial review on grounds such as these. They should dismiss them summarily in the exercise of their discretion. The ground for so doing is that Parliament has put in place an adequate system for reviewing the merits of decisions made by district judges and it is not appropriate that there should be further review of these by the High Court. This, we believe, reflects the intention of Parliament when enacting section 54(4) of the 1999 Act. While Parliament did not legislate to remove the jurisdiction of the High Court judicially to review decisions of county court judges to grant or refuse permission to appeal, we do not believe that Parliament can have anticipated the spate of applications for judicial review that section 54(4) appears to have spawned

55.

Everything that we have said should be applied equally to an application for permission to claim judicial review of the decision of a judge of a county court granting permission to appeal. We are not aware that such an application has yet been made.

Exceptional circumstances

56.

The possibility remains that there may be very rare cases where a litigant challenges the jurisdiction of a circuit judge giving or refusing permission to appeal on the ground of jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant’s right to a fair hearing. If such grounds are made out we consider that a proper case for judicial review will have been established.”

For completeness and clarity, I should say a word about what is called the pre-Anisminic sense of jurisdictional error. Anisminic [1969] 2 AC 147 was, of course, the seminal case in which their Lordships’ House held -- I summarise very broadly -- that any error of law by a tribunal, certainly an administrative tribunal, was an error of jurisdiction. The narrower pre-Anisminic sense of jurisdiction referred to the tribunal’s right to embark upon the question in hand at all: what might be called the condition precedent for its having any jurisdiction in the matter. The issue whether, having perfectly properly embarked upon some question, the tribunal then arrived at the wrong answer, was on this approach an entirely different matter, and not an issue of jurisdiction at all.

The essential question in this case is whether, in light of the authority of Sivasubramaniam (and other authority to which I will come in a moment), Goldring J was right to refuse to entertain a judicial review of HHJ Appleton’s decision. There is one matter along the way which I should address briefly. In his skeleton argument, Mr Knafler indicated a desire to advance a submission (see paragraph 31 and following) that Sivasubramaniam was wrongly decided, on the basis that the House of Lords has in a number of cases held that, as Mr Knafler puts it (paragraph 32), “pre-Anisminic law does not apply to judicial reviews of circuit judges”, and that sections 1 and 2 of the Civil Procedure Act 1997 make it clear that “the detailed machinery for civil justice” is to be settled by the judiciary and not Parliament. I need not take time with this. First, Mr Knafler has in my view no right to take the point; it was sought to be taken in the judicial review application, and Mr Knafler distinctly did not obtain leave from Collins J, who dealt with the matter on paper, to run it. The point is anyway in my view bad. The court in Sivasubramaniam did not in my respectful opinion hold that the judicial review jurisdiction would only run in cases of pre-Anisminic jurisdictional error; rather such cases, together with cases of grave procedural irregularity, constituted the kind of exceptional circumstance which the court thought might justify intervention by way of judicial review despite section 54. I understood Mr Knafler this morning to indicate that, given that reading of the court’s judgment in Sivasubramaniam, he had no further interest to submit that it was wrongly decided.

This question as to the scope of exceptional circumstances within the Sivasubramaniam decision is further elucidated by Gregory v Turner [2003] 1 WLR 1149. Giving the judgment of the court Brooke LJ said this:

“39.

In Sivasubramaniam’s case this court was at pains to emphasise the narrowness of the gap left open by its decision. A mere error of law by the circuit judge in the county court would not be sufficient. The possibility was confined to ‘very rare cases’, on the ground of an excess of jurisdiction in ‘the narrow pre Anisminic sense’, or the denial of the right to a fair hearing…”

“40.

Unfortunately, as the court recognised, the cases before Anisminic do not provide clear guidance. A useful summary of the classes of jurisdictional error, recognised by public law before the Anisminic case was decided, is included in the argument of Sidney Templeman QC and Mr Gordon Slynn for the Foreign Compensation Co-mmission: [1969] 2 AC 147 161. Their fourth category is a heterogeneous group of cases which counsel characterised in this way:

‘These are difficult cases in that it is sometimes hard to see what the precise point was but it may be possible to build up from them a proposition of general validity that a tribunal has no jurisdiction to make a determination if it has acted in complete disregard of its duties.’

Given that Ridge v Baldwin [1964] AC 40 was among the cases in this group, one sees why this court in Sivasubramaniam’s case specifically added the denial of a fair hearing as a class of jurisdictional error; but Mr Templeman’s characterisation of the group of pre-Anisminic decisions to which Ridge and Baldwin was assigned goes somewhat wider than the failure to hear which was the vice in that particular case.”

“41.

We agree, in any event, with the emphasis implied by the words ‘complete disregard of its duties’. What is required, at least, is some fundamental departure from the correct procedures.”

I must return briefly to Brooke LJ’s reference to the fourth category of pre-Anisminic error there set out. Mr Knafler has shown us some of the cases cited in argument by Mr Templeman in Anisminic to demonstrate that, in some instances at least, they amounted to what may be called ordinary errors of law: see for example Singapore Improvement Trust [1937] AC 898 at 914, 917; Jhuggroo [1952] AC 151 at 161, 162; and Maradana Mosque [1967] AC 13, 25. It may well be that these cases are not really instances, with respect, of a complete disregard of the court’s duties. However, they cannot assist Mr Knafler, as I see the matter, if in reality there is nothing exceptional about them. The essence, if I may so put it, of Brooke LJ’s reasoning is at the beginning of paragraph 41: the emphasis on “complete disregard of his duties” and the statement that what is at least required is some “fundamental departure from the correct procedures”.

Sinclair Gardens Investments [2006] 3 All ER 650 was a case in which it was sought to mount a judicial review of a decision of the Lands Tribunal to refuse permission to appeal to itself from the Leasehold Valuation Tribunal. Neuberger LJ (as he then was), with whom Auld LJ and I agreed, said this:

“[56] … I do not accept that the mere fact that a decision of the Lands Tribunal refusing permission to appeal was obviously wrong in law would be sufficient to justify its being judicially reviewed. Such a basis for judicial review would fly in the face of the conclusion and reasoning in Sivasubramaniam’s case and in Gregory v Turner, which appear to me to be applicable in this case for the reasons given above. Before permission to seek judicial review could be granted it would not be enough to show that the refusal of permission to appeal was plainly wrong in law. It would also have to be established that the error was sufficiently grave to justify the case being treated as exceptional.”

“[57] I think it appropriate to say, that there could, in my view, be cases, which would be wholly exceptional, where it would be right to consider an application for judicial review of such a decision on the basis of what could be said to be an error of law. A possible example would be if the Lands Tribunal, despite being aware of the position, refused, without any good reason, permission to appeal on a difficult point of law of general application, which had been before a number of different LVT’s which had taken different views on it, and which cried out for a definitive answer in the public interest. In that connection, it seems to me that one could say that it was not so much the point of law itself which justified judicial review, but more the failure of a public tribunal to perform its duty to the public, as well as what one might call its duty to the parties in that particular case.”

The case (see Gregory) where a court or tribunal has acted in complete disregard of its duties is, with respect, only doubtfully an instance of pre- Anisminic jurisdictional error; and the case (see Sinclair) where an appeal tribunal declined to grant permission in order to decide a point of law where there is an imperative need for decision in the public interest, could not, I think, be so categorised. Each of these instances, however, exemplified a defect much more fundamental than an error of law in the particular case.

How should such a defect be described in principle? I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both), and a case where, as I would venture to put it, the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case. It will or may include the case of pre-Anisminic jurisdictional error, where the court embarks upon an enquiry which it lacks all power to deal with, or fails altogether to enquire or adjudicate upon a matter which it was its unequivocal duty to address. It would include substantial denial of the right to a fair hearing, and it may include cases where the lower court has indeed acted “in complete disregard of its duties” (Gregory), and cases where the court has declined to go into a point of law in a particular area which, against a background of conflicting decisions of a lower tribunal, the public interest obviously requires to be decided (Sinclair). The Sinclair type of case is perhaps a sub-class of the Gregory case. Both, in any event, may be less hard-edged than the pure pre-Anisminic jurisdictional error case. The courts will have to be vigilant to see that only truly exceptional cases -- where there has indeed, as I have put it, been a frustration or corruption of the very judicial process -- are allowed to proceed to judicial review in cases where further appeal rights are barred by section 54(4).

What, then, of the present case? Mr Knafler has submitted this morning that Goldring J fell into error. He read Sivasubramaniam as limiting exceptional cases to the pre Anisminic jurisdictional error case. Given paragraphs 115 and 125 of his judgment, I doubt if that is right. But, in any event, as Mr Knafler acknowledges, we must consider the position for ourselves.

As to that, first, it seems to me this is plainly not a case of pre-Anisminic jurisdictional error. The district judge and the circuit judge embarked upon an enquiry which it was their duty to undertake. They were not in territory that was barred to them -- quite the contrary. Nor is there any error of law on the face of the record, if, which I do not necessarily accept, that would suffice as an exceptional circumstance. Mr Knafler says the judicial errors here are so gross or plain or stark that the case becomes an exceptional case. But the nature of the errors does not turn the case into one of pre-Anisminic jurisdictional mistake. He submitted also this morning that the circuit judge indeed exceeded his pre-Anisminic jurisdiction by reason of the fact that he failed to apply CPR Part 11 which governs the whole procedure for the conduct and trial of cases. I do not agree that in this sense the circuit judge exceeded his jurisdiction. On Goldring J’s finding he simply misapplied the rules.

Accordingly, I conclude that there is here no case of pre-Anisminic jurisdictional error. Secondly, there were no gross procedural failures. There was no question of real or apparent bias. The parties were properly heard by the district judge and the circuit judge. It is Mr Knafler’s submission that the court process here undertaken to strike out the claim was draconian. So be it. That does not turn the case into one of procedural failure, any more than it turns it into one of pre- Anisminic jurisdictional error. Thirdly, any want of reasons in the lower court on the waiver point (Mr Knafler complains of this: paragraph 8(3) of his skeleton) cannot, as I see it, begin to amount to the kind of frustration or corruption of the judicial process which I envisage as being required. It is true that the district judge dealt summarily with the waiver point. HHJ Appleton for his part gave reasons, erroneous though they were, for distinguishing the Uphill case. Mr Knafler complains that he made no reference to the argument Mr Dean advanced on common law waiver. I cannot see that that could carry the day.

Fourthly, the fact that the case touches (or arguably touches) Article 2 of the European Convention on Human Rights cannot in my judgment carry the day either. The submission is that following the decision of this court in Takoushis [2006] 1 WLR 461, these civil proceedings were or are the only vehicle for a practical and effective investigation of Melissa’s death, which is what is required by Article 2 where there are reasonable grounds for believing that a person has died as a result of negligence or misfeasance on the part of state officers. In Takoushis Sir Anthony Clarke MR, giving the judgment of the court, said this:

“105 … It seems to us that, however it is analysed, the position is that, where a person dies as a result of what is arguably medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state but may include such an investigation. Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process, satisfies the requirements of article 2 as identified by the European court in the cases to which we have referred, namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability.”

“106.

The question is whether the system in operation in England in this case meets those requirements. In our opinion it does. The system includes both the possibility of civil process and, importantly, the inquest. We can understand the point that the possibility of civil proceedings alone might not be sufficient because they do not make financial sense and may not end in a trial at which the issues are investigated. However, in the context of the other procedures available, an inquest of the traditional kind, without any reading down of the 1988 Act by giving a wider meaning to ‘how’ as envisaged in the Middleton case [2004] 2 AC 182, and provided that it carries out the kind of full and fair investigation which is discussed earlier in this judgment and which (we hope) will now take place, in our opinion satisfies the requirement that there will be a public investigation of the facts which will be both practical and effective. Moreover, the family will be able to take a full part.”

In this case, in my judgment there is no viable complaint of want of a proper system. It cannot be suggested that Article 2 of the European Convention itself requires a second tier of appeal in civil proceedings such as these; I might observe, moreover, that on the Strasbourg case law article 6 does not require there to be an appeal process at all for the determination of civil rights or liabilities. The failure in this case has not been in the nature of the system but, at least in the first place, in the appellant’s failure to use it properly. The civil proceedings were not brought promptly nor pursued with due diligence; and there was a serial failure to comply with the applicable procedure rules. Mr Knafler of course protests that in the end what has gone wrong has been the result of errors made by the district judge and the circuit judge, and that is so on Goldring J’s finding. But he cannot build on this circumstance, unhappy though it is, a viable conclusion that, in effect a further tier of investigation is required by Article 2.

There were apparently inquest proceedings. We were told this morning that they were adjourned pending criminal proceedings against the two persons who had been in the house at the time of Melissa’s death. After they were convicted, it seems the family sought to have the inquest reopened; but the coroner, having received submissions to the contrary from the respondents, declined to take that course. We are told that the appellant would not have obtained legal assistance at the public expense both to challenge that decision and to institute civil proceedings. He chose the latter. Obviously, he is in no way to be criticised for that. But in all the circumstances, I cannot see that the decision of Goldring J gives rise to a violation of Article 2.

I should note, at the end, that Mr Knafler was at pains to submit that the judicial review court traditionally adopts a flexible and pragmatic approach to the exercise of its jurisdiction. So it does; but that does not warrant any abandonment of principle where the court’s task is to see whether an exceptional case has been made out for judicial review against a background in which statutory appellate remedies have been advisedly curtailed by Parliament.

I have considered whether, in some sense not yet examined, there may have been a failure here which ought to attract judicial review. It would not be right to deal with the case simply by listing categories of possible error, and holding that the case does not belong in any of them. But, applying the approach which I have ventured to suggest, I cannot see that there was a failure or frustration of the judicial process in this case. The case is a sad one. Its importance to the family, no doubt, cannot be exaggerated. But I have concluded that the proper application of principle requires that the appeal should be dismissed. That is the order that I would make for the reasons I have given.

I agree.

I also agree.