Topping v Ralph Tristees Ltd

I have before me today an application to set aside an order of Foskett J, made on 24 May 2017. His order was to the effect that the claimant’s appeal in certain county court proceedings lies to a circuit judge in the county court, and not to the High Court. The claimant, appearing through counsel, Mr Simon Ross, says that was wrong, and that the appeal lies to this court.

The proceedings arose from an accident on 15 September 2013. It was said that the claimant had slipped in the defendant’s hotel spa, suffering injury. She claimed in the Milton Keynes County Court, asserting that the value of the claim was just over £103,000. The matter was listed for a two day trial in the Milton Keynes County Court. The trial was to take place on 6 and 7 March 2017.

Shortly before the hearing date, the County Court contacted the parties to say that a circuit judge was not available, but that the Designated Civil Judge had released the case to a district judge. That District judge was District Judge Jane Thorpe. On 6 and 7 March 2017, the case proceeded before District Judge Thorpe. The quantum of the claim was agreed at £60,000, subject to liability. Witness evidence was heard on the claimant’s behalf. None was called orally on the defendant’s behalf.

At the end of the second day, District Judge Thorpe gave judgment in open court. She dismissed the claim, with costs. The claimant wishes to appeal against that decision on a number of grounds, including procedural irregularity on the basis that weight had wrongly been given to written evidence from the defence, which had not been called orally. The detailed grounds of appeal do not matter for the present purposes.

The claimant took steps to obtain a transcript of the judgment. On 29 March 2017, the claimant appealed to the High Court. A question then arose as to the correct route of appeal. On 28 April 2017, the claimant’s solicitors, Collins Solicitors, wrote to the Designated Civil Judge, Her Honour Judge Melissa Clarke. The solicitors asked for confirmation that ‘when hearing the above matter District Judge Thorpe was exercising the jurisdiction of a Circuit Judge with the permission of yourself, the Designated Civil Judge’.

On 9 May 2017, the appeal was considered on the papers, by Lang J in this court. She granted an extension of time for the filing of the bundle. On the same day, Ms Holliday of Collins Solicitors, the claimant’s solicitors, followed up her letter to the County Court with an email chasing for a response to the letter of 28 April.

On 15 May 2017, the County Court responded:

A little later the same day, a further email was sent on behalf of the Designated Civil Judge, Her Honour Judge Melissa Clarke. It stated as follows:

Ms Holliday, of the claimant’s solicitors, sent one further email to the County Court asking for clarification. A response emanated from the County Court at Milton Keynes dated 18 May 2017 saying that District Judge Thorpe had commented as follows:

The next day, 19 May 2017, the claimant’s solicitors filed an application notice in this court, the High Court, asking for ‘a ruling as to the correct appeal route in this matter’. That application was served on Kennedys, the solicitors for the defendant in the original personal injury claim. It was supported by a witness statement of Ms Holliday, which included her recollection that at the hearing on 6 and 7 March 2017, District Judge Thorpe had said that she was ‘exercising the jurisdiction of a Circuit Judge with the permission of the Designated Civil Judge’.

On receipt of the application and the supporting statement of Ms Holliday, Kennedys wrote to the High Court on 22 May 2017. I am told that that letter was not copied to the claimant’s solicitors. There is no indication on the letter itself that it was copied to the claimant’s solicitors. If it was not, it should have been. It is improper to communicate privately with the court, without informing the other side. It is a denial of open justice too often overlooked by courts and tribunals as well as parties. It ignores elementary fairness as well as professional courtesy.

What appears to have happened in this case makes it necessary to restate the wise words of Lord Judge LCJ at paragraph 7 of his judgment in Mohamed v The Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2010] EWCA Civ 158:

I made a copy of the letter available to Mr Ross and Ms Holliday at court. There was no accompanying application by the defendant to this court, nor was any fee paid. In the letter, Kennedys contended that the correct route of appeal was to a circuit judge. This was the same view as expressed in the emails I had already mentioned. Kennedys’ contention was that District Judge Thorpe had not been sitting as a circuit judge and that release of the case to her by the DCJ did not equate to conferring on her the capacity of circuit judge.

That letter came to the attention of Foskett J, in this court. On 24 May 2017, he made the order which I am asked today to set aside. He discharged the order of Lang J of 9 May 2017 and directed that, ‘any Appellant’s Notice be issued before a Circuit Judge in Milton Keynes County Court’. His reasons stated as follows:

No application to set aside Lang J’s order had been made by Kennedys, the defendant’s solicitor. They had merely written informally to the court. The judge’s order did not include a standard provision that a party that had not been hard could apply to set aside the order. Nevertheless, the claimant’s solicitors have now done so. Initially, they attempted to appeal against the order to the Court of Appeal.

Foskett J then directed that an application should be made to set it aside; hence the application that comes before me today. It was made, accompanied by payment of the fee, a week ago on 12 January 2017. It asks, simply, that the order by Foskett J be set aside. Notice of today’s hearing was, I am told, served on Kennedys, the defendant’s solicitors, on 14 July 2017. No response from them was received but I understand they are aware of today’s hearing, at which there has been no appearance on the defendant’s behalf.

Mr Ross submits that the correct route of appeal is to the High Court. He points me to the following materials. First, Part 2 of the CPR deals with application and interpretation of the rules. It is supplemented by, among other practice directions, practice direction 2B dealing with allocation of cases to levels of judiciary. Paragraph 1.1A states:

Section III is headed ‘The County Court’. Paragraph 8.1(a) states:

proceedings which have been allocated to a District Judge pursuant to paragraph 11.1 below; … .

Paragraph 11.1 provides:

It is common ground between the parties and the County Court, as is apparent from the correspondence and evidence, that the Designated Civil Judge exercised her power under that provision to release the case to be tried by District Judge Thorpe.

Mr Ross referred me to paragraph 16, within the same Part III of the same practice direction. Under the heading ‘Appeals’ it provides:

Mr Ross submits that the words ‘should have been allocated to a Circuit Judge’ must be understood as bearing the meaning that the proceedings would, in the normal course, have been allocated to a Circuit Judge; and that in a case where, exceptionally, a case is tried by a district judge, following exercise by the DCJ of her power under paragraph 11.1(d), such a case must be considered as one that ‘should have been allocated to a Circuit Judge’ for the purposes of any appeal.

Mr Ross submits, further, that any other interpretation of that loose language does not make sense. He points out that if a case is wrongly allocated to a district judge when it ‘should have’ been allocated to a circuit judge, the decision of the district judge would be made without jurisdiction. An example would be allocation by court staff, in error, of a personal injury trial such as that in the present case, but where a direction from or permission from the DCJ or Supervising Judge (or the latter’s nominee) had not been obtained.

Moving on to the provisions in the White Book governing appeals, Mr Ross reminded me that the regime changed with effect from 3 October 2016. From that date, appeals from circuit judges in the county courts ceased to lie to the Court of Appeal and started instead to be brought to the High Court. This is well known.

The destination of any particular appeal is ordained by the Lord Chancellor, as explained in paragraph 3.1 of practice direction 52A containing general provisions about appeals:

Paragraph 3.3 then provides, so far as material:

Table 1 deals with appeals in proceedings other than family and insolvency proceedings…’

Paragraph 3.4 of the practice direction contains ‘[d]efinitions of terms and abbreviations used in Tables 1, 2 and 3’. Within those definitions the following is found: ‘D.J.’ means ‘District Judge’; ‘C.J.’ means ‘Circuit Judge including a recorder or a district judge who is exercising the jurisdiction of a Circuit Judge with the permission of the Designated Civil Judge in respect of the case’.

Table 1 provides, in the first entry, that where the court of first instance is the county court and the deciding judge is a ‘D.J.’ for present purposes the destination of an appeal is a ‘C.J.’. It also provides that where the deciding judge is a ‘C.J.’ the destination of an appeal is to the ‘H.C.’ which means the High Court.

Mr Ross’ simple point is that the deciding judge as stated in the table in this case was a ‘C.J.’ and not a ‘D.J.’ because the definition of a ‘C.J.’ is framed so as to include a district judge exercising the jurisdiction of a circuit judge, with the permission of the Designated Civil Judge, in respect of the case. Mr Ross submits that that is exactly what happened here. District Judge Thorpe exercised the jurisdiction of a circuit judge on release to her by the DCJ, HHJ Melissa Clarke, of the personal injury trial.

In my judgment, that argument is compelling and, it seems to me, manifestly correct. It is a matter of regret that Foskett J’s attention was not drawn by Kennedys, in their letter, to the provisions in practice direction 52A which I have just mentioned. They were under a duty to refer this court to relevant provisions. That duty was the more onerous because of their apparent omission to copy the letter to Collins Solicitors. Further, it seems to me likely that if Kennedys’ letter had been copied to the claimant’s solicitors, the latter would have drawn this court’s attention to those provisions, as Mr Ross did today.

I also agree with Mr Ross that paragraph 16 within Part III of practice direction 2B must be taken to bear the meaning he ascribes to it. The wording of paragraph 16 is unclear but I think must embrace a case such as this, i.e. one that would normally be heard by a circuit judge but which is, exceptionally, released to be heard by a district judge. I cannot otherwise make sense of paragraph 16, read together with the provisions in practice direction 52A to which I have referred.

I would add that the correct route of appeal does not turn on any question of whether the Designated Civil Judge objectively conferred or subjectively intended to confer on the district judge the “capacity” of circuit judge, as a question of fact. Here, the DCJ indicated that she could not confer that “capacity” on District Judge Thorpe because the latter is a district judge and is not a recorder. That does not alter the conclusion that the route of appeal in this case is that provided for by the combined effect of the two practice directions mentioned.

In the circumstances, I am clear in my mind that the correct route of appeal is to this court, and not to a Circuit Judge. I reach that conclusion without regret. The route of appeal should not depend on the happenstance that a circuit judge was not available to hear the case. It was heard at circuit judge level, albeit not by a circuit judge. Accordingly, it is right that an appeal should lie to this court.

I will therefore grant the application and set aside the order of Foskett J made on 24 May 2017. The question of permission to appeal will be considered by a High Court judge on the papers.