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

This is the judgment of the Court after a rolled-up hearing. The issue is whether to grant permission to appeal the decision of Mr David Lock KC sitting as a Deputy High Court Judge [“the Deputy Judge”] on 14 December 2022 on a renewed application for permission to bring judicial review proceedings and, if permission is granted, to deal with the substantive appeal against his decision. By those judicial review proceedings the Appellant wishes to challenge the lawfulness of a decision by HHJ Baucher in the Central London County Court [“the CLCC”] on 27 May 2022 refusing the Appellant permission to appeal an earlier decision of that Court. The Deputy Judge refused the Appellant’s renewed application for permission to bring the judicial review proceedings and certified that the renewed application was totally without merit.

This brief introduction hints at the possibility that the most recent decisions are merely the tip of an iceberg. Closer investigation of the factual and procedural background shows this to be true. In order to understand what the Deputy Judge thought he was doing on 14 December 2022 and, which is materially different, what the position actually was, it is necessary to go back to the beginning. We should say at once, however, that we are in no doubt that permission to bring the present appeal against the order of the Deputy Judge should be granted and that the appeal should be allowed. What else should be done to try to unravel what has happened is rather more complicated.

The Appellant has been represented throughout the history of the civil litigation to which we refer below by Dr Al-Ani on a direct access basis. Dr Al-Ani has shown remarkable professional persistence and commitment to the interests of his client, as we shall make clear. As is usual where the actions of a Court are brought into question, the Defendant initially indicated that it intended to take no part in the proceedings and that it adopted a neutral stance. When directing that this rolled-up hearing should happen, Stuart-Smith LJ directed that the Defendant should participate. As a result, Ms Milligan was instructed to appear for the Defendant. Her written and oral submissions were of the highest quality and extremely helpful, while maintaining a rigorously neutral stance. Stuart-Smith LJ also directed that the Interested Party [“the CPS”] should have the opportunity to make representations if it so wished. In the event, the CPS decided not to make representations but instructed Ms Longson to appear on a noting brief but without any authority otherwise to represent or bind the CPS. As we set out later, Ms Longson had represented the CPS at the hearing before HHJ Baucher. Despite the limitations on her instructions before us she provided helpful information about how that hearing had developed, for which we are grateful.

The Appellant is an Iraqi refugee who has been in present in the United Kingdom since March 2015. Before he arrived in this country he had business dealings with a Mr Zakaria, which ended in litigation. The Appellant says that, in the course of that litigation, he discovered that Mr Zakaria had committed criminal offences. For reasons that are not disclosed, he decided to bring a private prosecution against Mr Zakaria and, to that end, he applied to the Ealing Magistrates Court to issue a summons against Mr Zakaria alleging an offence of theft and an offence of fraud. In due course, summonses were issued and Mr Zakaria elected to be tried in the Crown Court. The Appellant then asked the CPS to take over the prosecution because, he says, he could not afford to instruct counsel to appear to prosecute the case. The CPS took over the conduct of the case but then decided to discontinue the prosecution. Despite protest from the Appellant, on 16 August 2019 the CPS upheld its decision to terminate the criminal prosecution. Accordingly the CPS offered no evidence in accordance with section 17 of the Criminal Justice Act 1967.

The Appellant’s first response was to issue judicial review proceedings on 4 November 2019 [“the 2019 JR proceedings”] seeking to challenge the decision of the CPS to discontinue. In addition, the Appellant sought declarations that the CPS had breached his rights guaranteed under Directive 2012/29/EU and under Article 6(1) ECHR. Permission to bring the 2019 JR proceedings was refused by Cheema-Grubb J on 18 March 2020 after an oral hearing.

The Appellant’s next response is what set in motion the course of events that led ultimately to Mr Lock’s decision in December 2022. On 26 July 2020, Dr Al-Ani sent the papers for a Part 7 claim for damages from the CPS to the CLCC for the court to process and issue the proceedings. From the outset the claim’s progress was dogged by what may most politely be called administrative mishaps. Despite the fact that the CLCC acknowledged receipt of the papers by signing for them on 28 July 2020, nothing happened until Dr Al-Ani had chased twice, first on 22 September and then on 19 October 2020. In response to the second chase, the CLCC said that it could find no record of receipt of the papers. It requested further copies, which Dr Al-Ani sent the same day. At a later date, the CLCC sent a standard form Notice of Issue to Dr Al-Ani stating that the claim had been issued on 21 October 2020. It said that the claim had been sent to the Defendant CPS by first class post on 2 November, that it would be deemed served on 4 November and that the CPS would have until 18 November to reply. The bottom half of the Notice of Issue was a tear-off section enabling the Claimant to request that judgment be entered in default if the CPS had not replied during the time for doing so i.e. by 18 November 2020.

Three things may be noted at this stage:

On 20 November 2020 the Appellant applied for judgment in default against the CPS.

The only response from the CPS came on 2 December 2020 when the Government Legal Department [“GLD”] wrote to Dr Al-Ani. The letter asserted that any claim was statute barred. More importantly for present purposes, it commenced by saying:

“We are instructed by the CPS in this matter.

We have been sent copies of the Court papers that you have attempted to serve directly upon our client.

Your attempt to serve directly upon our client is defective. Until the papers are served upon us in accordance with CPR 6.10(b), time limits for an Acknowledgement of Service or for a Defence do not begin to run, and there is no requirement for our clients or ourselves to respond in such manner.”

The reference to CPR 6.10(b) was to the provision that “In proceedings against the Crown … service on a government department must be effected on the solicitor acting for that department.” It is now apparent that the GLD did not copy its letter of 2 December 2020 to the Court; nor did it say or do anything more about the failure to serve on the GLD until the hearing before HHJ Baucher, to which we will return. The Appellant did nothing in response to the letter by way of applying to amend the entry in the Claim Form either then or later. It will, of course, immediately be noted that the GLD’s address is also 102 Petty France; and the 2 December 2020 letter shows that, despite the fact that the Claim Form did not mention the GLD, copies of the papers (i.e. the issued claim form and other papers submitted to the CLCC) for the 2020 Part 7 Proceedings) had been passed by the CPS to the GLD so that both the CPS and their instructed lawyers, the GLD, had them. This, of course, assumes that the papers went to the GLD via the CPS rather than being delivered directly to the GLD on arrival at 102 Petty France, as to which there is no information available to the Court.

On 10 December 2020 the CLCC wrote to Dr Al-Ani informing him that the Appellant’s request for judgment had been “referred to the Judge for directions, comments on your request or an order/hearing notice will be despatched in due course.” What then happened was that on 1 February 2021, as recorded in an order dated 25 February 2021, DJ Avent refused the claimant’s application for judgment and, of his own motion, struck out the claim. The reason given was that the Appellant should have sought Judicial Review of the decision to terminate the prosecution. The order correctly stated that the claimant could apply within 7 days to set aside or vary the order (see CPR 3.3(5), although the order made incorrect reference to CPR 23.10). We shall refer to this decision and order as “Avent 1”. Although it was specifically referred to in the Particulars of Claim that should have been before the District Judge when he made his order, there is no sign in the order that he was conscious of the fact of the 2019 JR proceedings or Cheema-Grubb J’s refusal of permission.

Avent 1 was received by the Appellant on 2 March 2021. The Appellant duly applied the following day, 3 March 2021, to set aside Avent 1, with a witness statement from Dr Al-Ani in support. The application notice referred to the fact that Avent 1 had been made in the absence of the Appellant and stated that no evidence from the CPS had been served. Dr Al-Ani’s witness statement drew a distinction between the 2019 JR Proceedings, which he said was “to argue that it was a wrong decision by the [CPS] to discontinue the criminal proceedings” and the 2020 Part 7 Proceedings which he said were seeking to enforce “his right for a remedy if the action of the Defendant resulted in a breach of his rights under the Convention.” He assumed, wrongly, that the CPS had made an application to strike out the claim and had submitted evidence. In fact the CPS had done neither of these things. So far as the CLCC was concerned, the CPS had done nothing and the order was made of the court’s own motion.

On 22 March 2021 the court acknowledged receipt of the Appellant’s application to set aside Avent 1 and stated that it had been referred to the Judge for directions. Subsequently, on 29 April 2021 the CLCC informed the Appellant that his 3 March 2021 application to set aside Avent 1 would be heard on 28 July 2021.

It is at this point that matters went seriously awry. For some reason that has not been fully explained, on 19 April 2021 (i.e. 10 days before the CLCC informed the Appellant that his 3 March 2021 application would be heard on 28 July 2021) DJ Avent made another decision, which was formally recorded in an order of the Court on 1 May 2021 (i.e. 2 days after the notice of hearing dated 29 April 2021). We shall refer to this decision and order as “Avent 2”. Avent 2 ordered that “the claim is struck out.” It stated that it was made upon the Court’s own motion. The reasons given for making the order included that the decision of the CPS to offer no evidence did not give rise to a private law remedy under the Human Rights Act 1998; that the Appellant’s redress was to pursue a Judicial Review which the High Court refused on 18 March 2020; and that the Appellant could not now bring a collateral attack against the High Court decision in the current proceedings.

Quite how Avent 2 came about is not entirely clear. What appears from the CLCC’s Case History of the Original Case File is that on 16 February 2021 a duplicate file was referred to DJ Avent with a request for judgment. This was after DJ Avent had made his decision on 1 February 2021 but before that decision was formally issued as Avent 1 on 25 February 2021. There is no apparent explanation for the decision to send a duplicate file to DJ Avent on 16 February.

It would be untenable to suggest that Avent 2 was intended to deal with the Appellant’s application to set aside Avent 1. For a start, the words “the claim is struck out” is the form of words used when the order of the court is effective and intended to strike out an existing claim. Furthermore, the reasons given for Avent 2 are obviously intended to be reasons supporting a decision to strike out the claim on this occasion. The order does not refer to Avent 1 either expressly or by implication. There is therefore no reason to think that Avent 2 was in any sense reiterating or restating what had already been decided.

Before us there was some discussion about whether Avent 2 should be described as a nullity. For reasons that we explain later, we would not so describe it: see [79] below. However, what is abundantly clear is that Avent 2 was ineffective since it purported to strike out a claim that could not be struck out because it had already been struck out by Avent 1. It follows that all the tortuous proceedings that subsequently arose out of Avent 2, which we detail below, should not have happened, since they were premised upon the fundamentally mistaken assumption or belief that Avent 2 was legally effective.

There are three inferences which are, in our judgment, inescapable. First, DJ Avent did not have Avent 1 in mind when he decided Avent 2. Second, that when sending out the listing direction on 29 April, the court did not appreciate that DJ Avent had made the decision that led to the issuing of the formal Avent 2 order two days later. And, third, that when drawing up and sending out Avent 2, the court did not appreciate that it had 2 days previously sent out the listing direction on 29 April 2021. Even allowing for the heavy load of paperwork in a busy County Court and the difficulties created by working from home during the pandemic, it is infinitely regrettable that the court’s control of its case file did not lead to an appreciation that Avent 2 was entirely inappropriate.

The Avent 2 order, as Avent 1 had done before, stated that the order had been made without a hearing and that the Appellant could apply within 7 days of service of the order to set it aside or to vary it. On 7 May 2021 Dr Al-Ani promptly sent an application to set it aside, with an accompanying witness statement. His witness statement set out the relevant procedural background, starting with his application on 3 March 2021 to set aside Avent 1, his receipt of the listing directions dated 29 April 2021 and his subsequent receipt of Avent 2. He took the point that the Appellant had not yet had an oral hearing “despite having filed a proper Claim and a proper Application Notice to set aside the order of the District Judge”, that being a reference to his 3 March 2021 application to set aside Avent 1. He referred to relevant authority in support of his contention that the Appellant was entitled to an in-person hearing and concluded by reiterating that the Appellant was entitled to an oral hearing for his Application Notice and the Claim. He did not expressly take the additional point, which he could have taken, that Avent 2 was legally ineffective - or at least that it was an order that required an explanation.

On 11 May 2021 Dr Al-Ani wrote to the CLCC asking for the copy of any application made by the CPS that led to Avent 2. On 28 May 2021 he was told that there had been no application and that the court had made its order of its own motion.

On 1 June 2021 Mr Story of the GLD gave notice that the GLD was now acting on behalf of the CPS and asked Dr Al-Ani to ensure that he was copied in to any further correspondence. The GLD took no action on behalf of the CPS either by filing an Acknowledgment of Service or an application in respect of the addressee of the original Claim Form or otherwise.

On 16 June 2021 the next inappropriate step was taken by the CLCC. In a letter to Dr Al-Ani it wrote:

“The Judge has viewed the application and direct the court office not to issue the application at this stage. The has [sic] enquired to the [Appellant] – should this application not more correctly be framed as an appeal against the decisions of DJ Avent, rather than an application to set it aside.”

The letter did not specify what application was being addressed. The reference to “decisions” might suggest that the letter was intended to address both of the Appellant’s outstanding applications (3 March and 7 May 2021). However, a document on the file reveals what caused the letter to be sent. The document is described as a referral sheet dated 28 May 2021 and is the document used within the CLCC to refer a question or application to a District (or other) Judge for directions or, if appropriate, decision on the papers. Under the heading “Hearings Listed” there was a reference to “Renewal App 28^th July 2021”, which is evidently a reference to the renewed application in respect of Avent 1. The document then says: “Please see attached application … from the [Appellant] … dated 7/5/21” and “You are being asked to set aside order dated 1/5/21.” The Referral Sheet is therefore a referral of the Appellant’s application to set aside Avent 2. According to the Referral Sheet, it was referred to a Deputy District Judge on 10 June 2021, who wrote “Please do not issue the applications but return it to the [Appellant] asking [the question that found its way into the letter of 16 June 2021]”.

This involved a fundamental misunderstanding of the proper position, which was that the Appellant was entitled to an in-person hearing of his application to set aside Avent 2, just as he was entitled to an in-person hearing of his application to set aside Avent 1. The error was compounded by the fact that the letter of 16 June 2021 did not specify that it was referring to the 7 May 2021 application to set aside Avent 2 and not to the 3 March 2021 application to set aside Avent 1. It is, however, clear from the information on the Referral Sheet that it was referring to the 7 May 2021 application to set aside Avent 2. There is no indication that the Deputy District Judge was conscious of Avent 1 or the potential significance of the reference to the renewal application being listed on 28 July 2021. There is also no indication that the Deputy District Judge was alerted by Dr Al-Ani’s reference in his witness statement to the March 2021 application to the possibility that Avent 2 was legally ineffective or that anything unusual was going on.

Dr Al-Ani’s response to the 16 June 2021 letter was to send the CLCC yet another application on 25 June 2021. This time the form of the application was an appeal against the “Order of the District Judge refusing to issue the Claimant’s Application Notice to set aside the District Judge’s order striking out the Claim without a hearing.” The Grounds of Appeal made it clear that Dr Al-Ani was (correctly) treating the letter of 16 June 2021 as relating to Avent 2. The grounds rehearsed the background going back to Avent 1; the Appellant’s filing of his 3 March 2021 application to set aside Avent 1 with an oral hearing; the listing direction on 29 April 2021; and the receipt of Avent 2 two days after the receipt of the listing direction. It was submitted that “there is no authority supporting the conduct of DJ Avent in making [Avent 2].” The Grounds went on to refer to the 7 May 2021 application to set aside Avent 2 with an oral hearing; and to the letter of 16 June 2021 (which was wrongly attributed to DJ Avent) ordering that the 7 May 2021 Application Notice should not be sealed. Dr Al-Ani’s witness statement laid out the same background and annexed the relevant documents. With a measure of understatement that shows considerable restraint, his witness statement also said:

“32.

The [Appellant] finds it difficult to comprehend the action of the Court when deciding on 29/04/2021 to fix a date for hearing the Application Notice dated 03/03/2021 only to decide TWO days later to strike out the Claim without any explanation.

33.

The claimant finds the Court’s action to be very casual when the date at which the order of 01/05/2021 was made is given at the bottom of that order to be 19/04/2021. There seems to be some confusion as [to] what was decided when. If the order to strike out was made on 19/04/2021 and only signed on 01/05/2021 then how did the Court issue the Notice of Hearing of Application on 29/04/2021.

34.

The Claimant believes that the Court has denied him justice by denying him ONE single ORAL hearing to enable him to argue his entitlement to damages in accordance with HRA 1998 resulting from the Defendant’s failure.”

Technically, Dr Al-Ani could have applied to set aside the refusal since it was made without a hearing; or, possibly, he could have issued another set of judicial review proceedings to challenge the refusal to grant the Appellant a hearing. It might also be said that he could have contacted the Court and replied to the letter of 16 June 2021 by saying that he did not accept that an appeal was the appropriate course and that he wanted the promised in person hearing to be granted. But, in our judgment, he was justified in his decision to adopt the course he did. He was already subject to baffling conduct on the part of the Court in purporting to strike out the claim twice, listing the application in respect of Avent 1 to be heard on 28 July 2021 and then sending the letter of 16 June 2021 with its unjustifiable refusal to list his application, with the added complication that the letter referred to the Court’s “decisions” without specifying which decision (Avent 1 or 2) was being talked about. His two previous attempts to set aside orders made without a hearing had got nowhere and, as he pointed out in submissions, judicial review should be treated as a remedy of last resort.

The confusion was compounded on 1 July 2021 when the CLCC’s listing team sent Dr Al-Ani a letter that was expressed to be about the hearing date of 28 July 2021. Having stated that the hearing would be held remotely unless the parties agreed otherwise, the letter asked eight questions ranging from “Have all outstanding directions been complied with?” through “Can you please confirm the time estimate for the hearing?” to “Do you wish this hearing to take place face to face at court …?”

Before replying to the CLCC, Dr Al-Ani wrote to the GLD on 7 July 2021 asking them for their time estimate for the hearing. Mr Story of the GLD replied “I presume this relates to the Koro matter? If so, I would estimate two hours.” Dr Al-Ani then replied to the CLCC on 8 July 2021 including a time estimate of 2-3 hours, that two parties were expected to attend, and that he had no objection to a remote hearing.

On 12 July 2021 an administrative officer of the CLCC responded to Dr Al-Ani’s submission of his appellant’s notice on 25 June 2021 saying:

“we are unable to process your Appeal as it is appealing a direction rather than a sealed court order. The Judge asked us to enquire whether the Application should instead be an Appeal against DJ Avent’s Order of 19^th April 2021 (i.e. Avent 2), which was the purpose of the court’s letter of 16^th June 2021”

The assertion that there could be no appeal against a direction rather than a sealed court order was yet another calamitous error: see [77] below.

Dr Al-Ani replied to the administrative officer on the same day with a submission that he asked should be put before the Judge. Correctly, the first point he made was that the Appellant had followed the directions of the judge and the Court at every step. He submitted, also correctly, that the Appellant was entitled under the CPR to have a hearing of his application for judgment in default and his application of the 3 March 2021 ought to have been heard. He concluded by saying that he left it to the judge to decide which route the Appellant should follow “in order for him to exercise the rights guaranteed under the law and the CPR”.

Having had no reply, Dr Al-Ani wrote again on 26 July 2021 to the administrative officer urging him to put his submission of 12 July 2021 before the Judge. We have seen no evidence that anything effective was done in relation to Dr Al-Ani’s submission or the chasing letter. In particular, we have seen no evidence that the submission was put before a Judge. If it was put before a judge, there is no record of the judge having considered or responded to it.

In the event the hearing listed for 28 July 2021 did not happen. The reason for this appears from an entry on the Case History of the Original Case File dated 27 July 2021, which records “28.0721 Vacated – Case S/O”. If, as the entry suggests, the hearing was vacated because the case had been struck out, two observations may be made. First, the whole point of the hearing was to enable the Appellant to apply to set aside Avent 1, which is what had struck out the claim. Second, an alternative possibility is that the reference to the claim being struck out was a reference to Avent 2, in which case it would be doubly inappropriate as (a) Avent 2 was ineffective and (b) the application listed to be heard on 28 July 2021 was to set aside Avent 1, not Avent 2. Whatever the reason, the opportunity for the Appellant to have the day in Court to which he was entitled was lost. That must be added to the growing list of serious errors in the administration of the Appellant’s litigation.

On 1 September 2021 Dr Al-Ani wrote to the CLCC what was intended to be a pre-action letter before an application for judicial review of the failure to grant the Appellant access to justice by failing to list his applications for oral hearings. In setting out the issue, Dr Al-Ani again set out the procedural background, which we have summarised above. Under the heading “The details of the action that the Defendant [i.e. the Court] is expected to take”, the letter said simply: “Grant the [Appellant] a hearing.”

On 9 September 2021 the same administrative officer as before wrote to thank Dr Al-Ani for his emails. He continued:

“I’m afraid I must refer you back to my email of 12^th July 2021. If you wish to lodge an appeal with our Court in a civil matter, it must be against a sealed order of the Court along with the appropriate fee or fee remission form. Without a valid application or appeal, the Court is unable to take further action as the claim has been struck out.”

In the light of this, the Appellant decided not to pursue his proposed judicial review against the CLCC. Instead, on 13 September 2021 Dr Al-Ani issued an Appellant’s Notice seeking to appeal Avent 2. It is an irresistible inference that this was a reaction to the Court’s continued failure to list for a hearing the Appellant’s 7 May 2021 application to set aside or vary Avent 2 and the contents of the court’s letter of 9 September 2021. Once again, Dr Al-Ani set out the procedural background in the Grounds and in a further witness statement. Once again, it should have been clear to anyone who read the grounds and witness statement that things had gone awry both in relation to the making of Avent 2 and in the Court’s failure to list the Appellant’s applications to set the two Avent orders aside, which Dr Al-Ani rightly described in his witness statement as “a total denial of justice”.

Nearly two months later, on 5 November 2021, the CLCC wrote to Dr Al-Ani to inform him that his appeal had been served on the respondent and that they had 14 days in which to reply with a respondent’s notice if they so wished. The Respondent was the CPS. The CPS did not respond.

On 12 November 2021, as recorded in an order made on 15 November 2021, HHJ Lethem considered the Appellant’s Notice dated 13 September 2021, which he noted had been filed out of time, given that the order being appealed was made on 1 May 2021 (Avent 2). The order stated that the Judge had considered the application and the file of papers. He stated that no good reason had been given for the Appellant’s Notice being filed out of time and ordered that (a) the application to extend time was refused and (b) the application for permission to appeal was refused. Once again, because the order was made without a hearing, it drew attention to the Appellant’s right to request a reconsideration at an oral hearing.

HHJ Lethem amplified his reasons, including the following:

“I. The Appellant maintains that the court wrongly refused to issue an application filed on or about 7th May 2021. If this is correct then his remedy was judicial review of the refusal to issue the application. The balance of section 11 makes no sense. There is a suggestion that DJ Avent refused the Appellant's Notice. That could not be right as the Appellant's Notice is case managed by a Circuit Judge and would not be open to DJ Avent to grant of refuse permission. The Appellant's Notice is woefully out of time and there is no coherent explanation with any merit.

II. In any event, the proposed appeal has no real prospect of success and there are no other compelling reasons for permission to be granted. There are no particulars given that would indicate that the court below took into account irrelevant matters or failed to take into account relevant matters when reaching its factual conclusions nor exercised its discretion outside the generous ambit afforded to a judge at first instance.”

It is apparent from these reasons that HHJ Lethem did not understand or have in mind Dr Al-Ani’s explanation of why and how he came to issue the 13 September 2021 Appellant’s Notice when he did. Specifically, he cannot have had in mind the sequence of events set out by Dr Al-Ani which explained that his applications for in-person hearings had been ignored or rejected, that the Appellant was entitled to an in-person hearing, and that the reason why the 13 September 2021 Appellant’s Notice was out of time was because the court had wrongfully refused to list his applications for an in-person hearing.

Dr Al-Ani applied for an oral hearing on 19 November 2021. It was this application which ultimately came before HHJ Baucher on 27 May 2022. With his application Dr Al-Ani filed another witness statement which, as before, set out the background and exhibited the relevant documents. His evidence included that he had applied to vary or set aside Avent 2 within a week of receiving it. He also explained that the issuing of the Appellant’s Notice followed the Court’s letter of 9 September 2021, which he took to be a direction from the Court to proceed by way of an appeal. He exhibited that letter.

Dr Al-Ani attempted to serve the application documents upon Mr Story at the GLD, but the email system initially failed to deliver them. He therefore corresponded with Mr Story about alternative means of delivery, finally sending the documents by email in three tranches on 25 November. Mr Story acknowledged receipt, merely noting that “the documents were served on me out of time, and I reserve the right to bring this to the court’s attention at the appropriate time.”.

On 20 January 2022 the Court issued a notice of Oral Hearing stating that the oral hearing would take place on 21 February 2022, with a time estimate of 30 minutes before a Circuit Judge: that was referring to the oral hearing of the Appellant’s application for reconsideration of the 15 November 2021 order of HHJ Lethem. That direction was superseded by a further order, made by HHJ Lethem on 3 February 2022, that the application for permission to appeal should be listed on the first open date after two months before HHJ Lethem with a time estimate of one hour. The order said that the Respondent need not attend.

In response to another listing questionnaire, Dr Al-Ani exchanged emails with Mr Story of the GLD on 4 February 2022. On being asked for his comments on the listing questionnaire, Mr Story said that the Court had already sent it to him and that he would reply to them and copy in Dr Al-Ani. He duly did so later that day, suggesting that a remote hearing would be most appropriate and stating that the only attendee for the CPS would be Ms McAteer of Counsel.

On 22 March 2022 the CLCC sent directions for the hearing to be heard on 27 May 2022; and so it was that the hearing came before HHJ Baucher on that day.

In accordance with directions that had been given by the Court, Dr Al-Ani prepared and filed a Skeleton Argument, which cross-referred to the witness statement he had filed with the current application. In addition to the contents of the witness statement, which had set out the relevant background, the Skeleton Argument set out the procedural background, identifying accurately the confusion and errors that appeared on even a cursory review of his witness statement and the latest skeleton. On a fair reading of his (uncontradicted) witness statement and skeleton it was obvious that the sequence of events leading to the hearing on 27 May 2022 flowed directly from the issuing of Avent 2, the confusion that order had generated, and the court’s confused and frankly wrong directions that had followed. In particular, they showed why HHJ Lethem’s conclusion that there was no good reason for the delay in issuing the Appellant’s Notice on 13 September 2021 was unfounded.

We have read the full transcript of the hearing before HHJ Baucher. It does not make for happy reading. The first thing to note is that Ms Longson of Counsel was instructed to appear on behalf of the CPS. Her submissions make plain that she appreciated the need for an exercise of judicial discretion in the CPS’s favour if she was to make substantive submissions because (a) the CPS had not served an acknowledgement of service; (b) the CPS had not made an application under CPR Part 11 as it should have done if it was to take a point challenging the jurisdiction of the court because of defective service: see [65] below; and (c) neither the CPS nor Ms Longson had submitted a skeleton argument or any other material indicating what their position would be.

It is to be remembered that the hearing was, or should have been, the hearing of the Appellant’s application for an oral hearing to set aside or vary the decision on the papers that HHJ Lethem had made by his order of 13 November 2021. In the light of this and the precarious basis upon which Ms Longson was attending, it is surprising and unfortunate that the judge started by addressing Ms Longson about the issues and how they might be resolved. Far from being given the opportunity to present his application to the Court, Dr Al-Ani was asked to sit down while the judge continued her discussion with Ms Longson. That said, the Judge’s initially expressed provisional view was that there should have been an oral hearing for the Appellant to have the opportunity of addressing the District Judge. Ms Longson appeared to accept that proposition but then submitted that there was “a slight difficulty because these proceedings were never served.” While accepting that it was “slightly irregular” that she was appearing at all and that another tribunal might not have allowed her to do so, she took the judge to the GLD’s letter of 2 December 2020. The judge immediately identified that the burden of the point that Ms Longson wished to make was that it would be a “waste of time” to grant permission and send the case back to the District Judge “because they had not issued proceedings.” Ms Longson developed her submission by saying that “the case does not exist”.

It is apparent from the transcript that at this point Dr Al-Ani attempted to intervene. He was, in my judgment, right to do so because his application had been hijacked in two respects. First, the judge had given him no opportunity to present his application but had allowed Ms Longson to make all the running. Second, he had no notice in advance of the hearing that the point was to be taken, save that we accept that Ms Longson informed him outside court while waiting to be called on. Regrettably, the judge did not allow Dr Al-Ani to intervene, saying that he “would have his opportunity”. Ms Longson was allowed to continue her submission that, if remitted for an oral hearing, the District Judge would have to consider “whether to declare that the claim does not exist, having never properly be served” which she submitted was the correct course to take. She went so far as to submit that “at some way along the line, the court would have to acknowledge that the claim no longer exists, that it does not have jurisdiction to hear the claim, because it does not. It has never been served correctly, and we are way out of time now from the issue of the claim form.”

At this point the judge finally turned to Dr Al-Ani. Dr Al-Ani tried to develop a submission that responsibility for the correct serving of the proceedings rested with the Court. The judge formed the view (which she was entitled to form) that this was a bad submission; but she rejected, in language that became increasingly intemperate and with frequent interruptions, all attempts by Dr Al-Ani to make his submissions. She then returned to Ms Longson for assistance in how to frame her order. Ms Longson suggested that the judge should allow the application for permission to be made out of time and then refuse the application, which is what the judge did.

In her ex tempore judgment, the judge declared herself satisfied that the time limit for issuing the Appellant’s Notice had been breached and that it was a serious breach. She did not refer to any of the background but held that the real reason for the delay and breach was confusion on the part of the Appellant, which she did not regard as a good reason. Her only reference to the procedural background and the role of the court in generating confusion was to say that the reason for the breach was confusion “not assisted greatly by the court office.” However, she said that “the proper course of action in fairness to the Appellant, taking into account the need to comply with orders, but for there to be justice between the parties, is to grant permission to appeal out of time.” She then went on to address what she described as “an underlying issue in relation to this matter, namely that the proceedings themselves have not been properly served.” She held that the proceedings had not been served on the GLD as they should have been in compliance with CPR 6.10 because the Appellant did not provide the correct address to the court. Having discussed the terms of CPR 6.6(2) she concluded that “the reality is that there were no proceedings in the sense that whilst they had been issued, they had not been served on the correct party.” On that basis she concluded that:

“there would be no purpose in my permitting the appeal for that irregularity and remitting the proceedings back to the District Judge because all the District Judge could say at any subsequent hearing was, “I have no jurisdiction to hear this matter because the proceedings have not been served on the correct party.” It would be an inappropriate use of the court’s resources.”

The judge therefore refused permission.

The order reflecting the judge’s decision stated:

“Preamble

1.

The appellant has not complied with CPR 6.10, CPR 6.6(2) and PD 66

2.

These proceedings have never been served

It is ordered that

1.

Permission to appeal out of time granted.

2.

Permission to appeal refused. There is no right of appeal against this decision – Access to Justice Act 1999 s. 54(4)

The Appellant to pay the Respondent’s costs to be subject to detailed assessment if not agreed.”

It is unfortunate that the Judge was deflected from her initially expressed provisional view by the submission that the proceedings did not exist because they had not been served on the GLD. It is doubly unfortunate that, perhaps because she considered that Dr Al-Ani’s initial submission about the responsibility of the court for effecting service correctly to be thoroughly bad, she did not consider the alternative courses and case management orders that would be open to a District Judge if the GLD were to raise the question of defective service (either originally or at this late stage), or the fact that the point was now being raised without complying with the provisions of CPR Part 11 or giving any advance notice of their intention to raise the point. It is triply unfortunate that the end result was reached after a hearing where Dr Al-Ani’s well-founded and fully explained application was peremptorily dismissed after what can only be described as an unacceptable litigation ambush that should not have been tolerated.

With all other possible routes barred, the Appellant issued these judicial review proceedings on 19 July 2022 naming the CLCC as Defendant and the CPS as Interested Party. The Statement of Facts and Grounds set out the background, annexing relevant documents. Dr Al-Ani concentrated in his submissions and grounds on (a) the procedural irregularity of allowing the CPS to raise the point about non-service without having complied with the provisions of CPR 11; (b) what he described as the CPS misleading the judge by failing to disclose the full history of the CPS’s conduct (or lack of conduct) in relation to the claim, which, he submits, could only be construed as having accepted service; and (c) the denial of the Appellant’s right to an oral hearing by successive decisions of the CLCC culminating in the decision of 27 May 2022. In support of his grounds, he referred to R (Sivasubramaniam) v Wandsworth County Court [2004] 1 WLR 475, [2002] EWCA Civ 1738 including [56] where the Court said:

“[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.”

The application for permission on the papers was refused on 1 November 2011 by Ms Margaret Obi sitting as a Deputy High Court Judge. Ms Obi was not persuaded that the Statement of Grounds arguably demonstrated a procedural irregularity which constituted a substantial denial of the right to a fair hearing.

Dr Al-Ani filed an application for renewal of the claim for permission to apply on 3 November 2022. His renewed application came before the Deputy Judge on 14 December 2022. The Deputy Judge had the order made by HHJ Baucher but did not have a transcript of the hearing before her or of her judgment. He did, however, have a skeleton argument from Dr Al-Ani which referred back to the summary of the background in the Grounds and Statement of Facts. Dr Al-Ani described as the essence of the background that:

“(i)

Although the Claimant had filed his Claim on 26/07/2020, he has not yet had a single hearing on the substance or merits of his Claim;”

(ii)

Service of the Claim on the Defendant had either been affected by the Court or that the Defendant had waived its right to service by its action;

(iii)

The Defendant misled the County Court on 27/05/2022 when it submitted that the proceedings had never been served on it;

(iv)

The Circuit Judge erred in law she allowed the Defendant to address her on the lack of jurisdiction contrary to Part 11 of the CPR.”

The Deputy Judge gave an ex tempore judgment and, by his order of the same date dismissed the application and certified it as being totally without merit. His judgment needs to be considered in a little detail. Early on, the Deputy Judge expressed “very substantial doubt” about whether the underlying claim demonstrated any breach of the Appellant’s human rights without making a finding that the underlying claim had no merit. He also suggested that any challenge to the CPS decision to discontinue the proceedings ought to have been made by judicial review proceedings “but is very unlikely to give rise to a private law action” though, once again, he did not make a finding that it did not do so.

The Judge then said:

“3.

Nonetheless, he started these proceedings against the Crown Prosecution Service and sent the proceedings for service to the County Court. The County Court did not serve the proceedings in accordance with CPR 6.10 and the Government Legal Service on behalf of the County Court took the point they had never been properly served. There was then a series of procedural hearings when the claim was struck out by the District Judge and the claimant applied to set aside or vary that. Eventually, when that application was refused, it came on by way of an appeal against the decision of the District Judge.”

In our judgment this summary is so concise that it suggests the Deputy Judge had not appreciated anything of the protracted history, so carefully laid out by Dr Al-Ani in his documents for the Court, or the confusion generated by the Court’s actions.

Nor, it must be said, is there any indication in the judgment that the Deputy Judge appreciated that there were real issues about the CPS’s conduct in relation to the failure to serve the proceedings on the GLD either initially or later. In particular there is no sign of an appreciation that, if the CPS wished to challenge the jurisdiction of the court on the basis of defective service, they should (as Dr Al-Ani had pointed out) have complied with the provisions of CPR Part 11: see [64] below.

However, what is both extraordinary and inexplicable about the judgment of the Deputy Judge is that he decided the application on the basis that HHJ Baucher had refused to extend time for bringing the appeal that was before her. That this is so is clear beyond argument from the following passages:

“4.

… [HHJ Baucher] refused an application for permission to appeal out of time and observed in her preamble that the proceedings had never been served. It seems to me that the question as to whether the previous proceedings had never been served is undoubtedly correct; they were never served. Mr Koro's case, presented ably this morning by Mr Al-Any, his barrister, is that even though proceedings have never been served, service had been waived. It does not appear to me that the judge accepted that argument and in my judgment she was fully entitled to say that this argument had no merit. Further, the judge had a discretion to decide whether to extend time to allow the claimant to appeal, and, as a case management decision, she refused to extend time. In my judgment, that is a case management decision that the judge was entitled to make, and a decision which, on the facts of this case that was not clearly wrong. Indeed, it is a decision that, if the matter had come before me, almost inevitably I would have made.”

The Deputy Judge referred to Sivasubramaniam and the need to show very exceptional circumstances if permission is to be given and continued:

6.

Cutting through all of the arguments that have been made this morning, it seems to me this case does not raise any exceptional circumstances. The appeal failed because it was out of time and there was a lawful case management decision by the judge not to extend time. The Judge had a discretion to exercise and she decided not to extend time, as she was perfectly entitled to do. That does not seem to me to come anywhere near the sort of exceptional circumstances envisaged in Sivasubramaniam. Therefore, whilst I acknowledge that the issues about whether the defendant had been served (which it plainly had not properly) and whether service had been waived (which does not appear to have been the case) might be thought to be complicated issues, this application cannot make any progress unless the claimant can overcome the judge’ decision not to extend time. The judge's decision is one that she was entitled to reach and in those circumstances I cannot see there is any error of law in her decision to dismiss the appeal. Further, even if there was an arguable error (which there is not) the facts of this case do not appear to me to raise any exceptional circumstances and therefore, even if there was an arguable case, I would have refused permission to proceed by way of judicial review.”

We describe this as extraordinary because it was entirely clear from HHJ Baucher’s order that she had in fact extended time. It is inexplicable because there is nothing in the papers that we have seen to explain how the Deputy Judge could have made such a fundamental error having read the papers and heard from Dr Al-Ani.

Dr Al-Ani’s grounds of appeal for permission to appeal to this court from the decision of the Deputy Judge include that:

In our judgment the appeal raises a more general question, namely the effectiveness or otherwise of Avent 2 and any decisions that flowed from it, up to and including the decision of HHJ Baucher.

I agree.

I also agree.