IN THE HIGH COURT OF JUSTICE [2017] EWHC 1954 (QB)

QUEENS BENCH DIVISION

INTERIM APPLICATIONS COURT

Case No: QB/2017/0081
Courtroom No. 37
Royal Courts of Justice
Strand, London
WC2A 2LL

10.45-12.45pm
th
Wednesday, 19 July 2017

Before:
THE HONOURABLE MR JUSTICE KERR

B E T W E E N:

LINDA TOPPING
 Applicant

and

RALPH TRISTEES LIMITED

Respondent

MR SIMON ROSS of counsel appeared on behalf of the Claimant

APPROVED JUDGMENT

This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in
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reserved.

MR JUSTICE KERR:

1. 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 claimants 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.

2. The proceedings arose from an accident on 15 September 2013. It was said that the claimant had
slipped in the defendants 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.

3. 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 claimants behalf. None
was called orally on the defendants behalf.

4. 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.

5. 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 claimants 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.

6. 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 claimants solicitors, followed up her letter to the County Court with an email
chasing for a response to the letter of 28 April.

7. On 15 May 2017, the County Court responded:

District Judge Thorpe informs that she was sitting as a District Judge with
permission from the DCJ to try your multi-track case. She was not, and cannot, sit as
a Circuit Judge, therefore the claimant should apply for permission to appeal to the
Circuit Judge Bench in Oxford Combined Court and not the High Court.

8. 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:
I released this multitrack matter to District Judge Thorpe for her to hear the trial.
She heard it in her capacity as a District Judge. She is not a Circuit Judge, nor does
she have the authorisation to sit as a Circuit Judge as she does not hold appointment
as a Recorder.

Practice direction 2B - 11.1 of the CPR confirms that, the following proceedings ..
will normally be allocated to a District Judge-
(d) any other proceedings with the direction or permission of the Designated Civil
Judge..

Such permission was given and accordingly this was a normal allocation to a
District Judge.

9. Ms Holliday, of the claimants 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 court has made it clear that District Judge Thorpe was sitting as a District
Judge when she heard this matter. She had jurisdiction to try the matter as she had
received the permission of DCJ. The important point is that any application for
permission to appeal should be made to the circuit judge in Oxford.

10. The next day, 19 May 2017, the claimants 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.

11. 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 claimants
solicitors. There is no indication on the letter itself that it was copied to the claimants
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.
 12. 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:
It is an elementary rule of the administration of justice that none of the parties to
civil litigation may communicate with the court without simultaneously alerting the
other parties to that fact. .

13. 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.

14. 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 Appellants Notice be issued before a Circuit Judge in Milton Keynes
County Court. His reasons stated as follows:
All the material indicates that the case was released to the District Judge to be heard
by her as a District Judge, not as a Circuit Judge. This means that the avenue for any
appeal from her order must be to a Circuit Judge. Since the High Court has no
jurisdiction in this matter, (a) the order of 9 May 2017 must be discharged and, (b) I
have no power to direct that an appeal or application for permission to appeal is
heard by a High Court Judge.

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

16. 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
todays hearing was, I am told, served on Kennedys, the defendants solicitors, on 14 July
2017. No response from them was received but I understand they are aware of todays
hearing, at which there has been no appearance on the defendants behalf.

17. 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:
Circuit Judges and District Judges may exercise any jurisdiction conferred on the
County Court or on a judge of the County Court. Section III of this Practice
Direction sets out the matters that will be allocated to a Circuit Judge as well as
those that may, or will normally, be allocated to a District Judge.

18. Section III is headed The County Court. Paragraph 8.1(a) states:
In the first instance, the following applications for orders and interim remedies will
be allocated to a District Judge
 (a) proceedings which have been allocated to a District Judge pursuant to paragraph
11.1 below; .

19. Paragraph 11.1 provides:

The following proceedings referred to in paragraph 8.1(a) will normally be
allocated to the District Judge .

Various types of claim are then set out, and at paragraph 11.1(d):
any other proceedings with the direction or permission of the Designated Civil
Judge or Supervising Judge or Supervising Judges nominee.

20. 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.

21. Mr Ross referred me to paragraph 16, within the same Part III of the same practice direction.
Under the heading Appeals it provides:
The appeal of any decision by a District Judge in proceedings which, under this
Section, should have been allocated to a Circuit Judge, will be determined as if that
decision had been made by a Circuit Judge.

22. 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.

23. 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 latters nominee) had not been obtained.

24. 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.

25. 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:
Section 56 of the Access to Justice Act 1999 enables the Lord Chancellor by Order
to specify the destinations of appeal in different cases. The Access to Justice Act
1999 (Destination of Appeals) Order 2016 specifies the general destinations of
appeal which apply subject to any statutory provision to the contrary.
The destinations of appeal provided by these provisions are explained in the
following paragraphs of this section of this Practice Direction.

26. Paragraph 3.3 then provides, so far as material:

The court or judge to which an appeal is to be made (subject to obtaining any
 necessary permission) is set out in the tables below:
Table 1 deals with appeals in proceedings other than family and insolvency
proceedings

27. 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.

28. 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.

29. 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.

30. In my judgment, that argument is compelling and, it seems to me, manifestly correct. It is a
matter of regret that Foskett Js 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 claimants solicitors, the latter would have drawn
this courts attention to those provisions, as Mr Ross did today.

31. 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.

32. 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.

33. 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.

34. 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.

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