Alistairs Solicitors, R (on the application of) v Exeter Crown Court

This is a renewed application for permission to apply for judicial review, brought by Alistairs solicitors, a single-solicitor firm, the principal of which is Mr Peter Balchin.

He seeks permission to challenge the decision of HHJ Tyzack QC at the Exeter Crown Court to refuse to list a hearing to consider costs from central funds in respect of an appeal by Adrian Shaw, on whose behalf Alistairs acted on the conviction in his absence by Torquay Magistrates' Court of various driving licences, including using a mobile phone while driving, on 3 April 2008.

The decision not to list a costs hearing was made on 11 February this year, following the dismissal of the appeal in January. The date of some of the documents before me is 14 January, but the record obtained from the Crown Court at Exeter today is dated 21 January. It is not clear which date is the correct one, whether the record was prepared later, but it matters not.

At the appeal against the conviction by the Torquay court, the Crown offered no evidence in respect of the majority of the convictions.

The appeals were dismissed in relation to the offences which I have described, but the record records that the appeals were allowed in respect of offences 1, 2, 3, 4, 6, 7 and 8. Accordingly, it was only in respect of the conviction for using a mobile phone that the appeal was dismissed.

When the solicitor asked for the matter of an order of costs from central funds to be listed, HHJ Tyzack refused. The letter from the assistant listing officer in Exeter, dated 11 February, to the solicitor states:

Permission is sought on two grounds. First, a proper opportunity to make submissions as to costs was not given. Secondly, the judge's decision was based on a mistake of fact. The mistake was a belief that Mr Shaw had lost the appeal when he had been successful in having the majority of his convictions set aside.

I have concluded that this case is arguable on the first of those grounds. It appears that, when refusing permission on the papers, Hickinbottom J took into account that, from the nature of the correspondence between the claimant and the various courts and court office, the motivation for this hearing was in order to air criticisms of the magistrates' court. As such, the application for a hearing would have been made for an improper purpose. Miss Grubb today refocused this application, and in the light of her refocusing I have concluded that the claim on the first ground is arguable.

I am not going to refuse permission on the second ground, but I note that what the letter says is that the claimant's client lost "the principal appeal". It is not clear from this that the judge's decision was based on a mistake of fact. It may be that the judge considered the offence of using a phone was more serious than the others (insurance, failure to produce certificates and absence of MOT certificate charges), but the word "principal" does, to me, seem to suggest that the judge was aware that there were other appeals.

There is, however, another issue which the claimant has to consider carefully. This is the issue of standing. Hickinbottom J raised this in his decision in a conditional way, concluding that, even if the claimant had standing and even if rule 42.4 of the Criminal Procedure Rules applied, the judge was entitled to refuse a hearing to reconsider an order he made on the appeal.

The problem is that the appeal was brought by Mr Shaw. A very generous approach to standing is taken in the courts of this country in public law cases, but there are limits, particularly when a legal representative is pursuing judicial review proceedings rather than the party to the litigation concerned. See the discussionR v Legal Aid Board ex parte Bateman [1992] 1 WLR 711 at 717 and the way that case is digested in Fordham's Judicial Review Handbook at 38.2.11.

That case was a case in which the claim was in the name of a legally-aided client for the benefit of Makin's, the well-known Liverpool firm of solicitors. The court described that as unedifying. In this case, the claim is in the name of the solicitor's firm, but that case also casts doubt (see particularly at page 717) on standing in circumstances such as this. Accordingly, it may be that on a full examination of the standing position the claimant will be found not to have standing. That is a matter for the full hearing.

I am going to ask for a transcript of that so that that can be put with the papers available for the full hearing. The matter will have to be heard by a High Court judge and it is to be listed in this Civil Justice Centre in the ordinary way.