Refusal of permission to appeal

R (On the application of Sivasubramaniam) v Wandsworth and Kingston upon Thames County Courts ([2003] 2 All ER 160)

Section 54(4) of the Access to Justice Act 1999 provides ‘no appeal may be made against the decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court)’. However, this provision has not ousted the High Court’s jurisdiction to subject to judicial review decisions of circuit judges in the county court to refuse or grant permission to appeal from decisions of district judges in those rare cases where a litigant challenges the decision of a circuit judge to give or refuse permission to appeal on the ground of want of jurisdiction or procedural irregularity of such a kind as to constitute a denial of the applicant’s right to a fair hearing. In other cases, the scheme 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 a judge of the appellate 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. The possibility that a circuit judge may exceed his jurisdiction 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. That such an attack is likely to be misconceived was exemplified in the present cases. Judges of the Administrative Court should not 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 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. While Parliament did not legislate to remove the jurisdiction of the High Court judiciary to review the decisions of county court judges to grant or refuse permission to appeal, Parliament could not have anticipated the spate of applications for judicial review that s54(4) appears to have spawned. Although there has been no application for judicial review of a decision of a county court judge granting permission to appeal, everything said by the court in respect of these applications would apply to an application for judicial review of permission to appeal.