Pelling v Head of Civil Appeals [2006] EWCA Civ 697

Case No C1/2005/2032[2006] EWCA Civ 697
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE LEVESON)
Venue Royal Courts of JusticeDate Tuesday, 9 th May 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE BROOKE,
VICE PRESIDENT, COURT OF APPEAL (CIVIL DIVISION)
Between
MICHAEL JOHN PELLINGAppellant- v -
Between
HEAD OF CIVIL APPEALSRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPLICANT APPEARED IN PERSON. for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
J U D G M E N T

LORD JUSTICE BROOKE:

[1]There are two applications before the court today. The first is an application for permission to appeal against the judgment of Leveson J in the Administrative Court in a case he decided last September. The second is an application that a judge of this court reconsiders a direction given by Deputy Master Di Mambro, when Dr Pelling made an application in July 2004 that an injunction issued by this court in 1996 could be discharged or set aside.[2]The matter has a bit of a history. In 1996, Dr Pelling was in dispute with his former wife about the residence of their son, who was born in November 1990. In March 1996 Judge Goldstein refused to allow the proceedings to be heard in public and refused to make a judgment in public, and on 20 June 1996 a court consisting of Butler-Sloss LJ, Peter Gibson and Thorpe LJ gave a judgment upholding Judge Goldstein’s approach. Their judgment is published anonymously as Re PB (Hearings in open court) [1996] 2 FLR 765 and at that time the Court of Appeal made an order that no one should publish or reveal to anyone other than the parties to this appeal or the official solicitor, the name or address of the minor child who was the subject of these proceedings or publish or reveal any particular information which would be likely to lead to the identification of the minor. Dr Pelling was dissatisfied with this approach, but efforts to have the 1996 judgment made public failed both in the House of Lords and in the European Court of Human Rights at Strasbourg, which delivered judgment on his application in April 2001.[3]In January 2003 Dr Pelling applied to the High Court for a joint residence order and for a declaration that section 97(2) of the Children Act 1989 was incompatible with Articles 6 and 10 of the European Convention of Human Rights. This application was dismissed both by the judge and on appeal but on this occasion, on 1 July 2004, the Court of Appeal did not anonymise this judgment and set aside a direction which had previously been given in those proceedings on 30 March 2004 to protect the anonymity of the family’s son, who was by now 13 years old. That judgment is published as Pelling v Bruce Williams [2004] EWCA Civ 845, [2004] 3 All ER 875. After that judgment was given, Dr Pelling endeavoured to file a notice of appeal in this court for the direction to the effect that the 1996 injunction should be discharged or set aside because the child and the parents had now been named in a published judgment of the court.[4]On 19 July 2004, a member of the staff of the Civil Appeals Office informed Dr Pelling that she was returning his application notice because there was no need to issue it. Thorpe LJ had asked her to inform Dr Pelling that the 1996 injunction stood discharged. On 1 August 2004, Dr Pelling wrote to the Head of the Civil Appeals Office, in which he said that if Thorpe LJ had made an order discharging the injunction, then please could he be provided with the sealed order of the court.[5]On 3 September 2004 he received a reply from the same member of staff who had written to him earlier:
“I have been asked to advise you that Thorpe LJ has not made an order discharging the injunction. As my letter of 19 July explained, it is his view that the 1996 injunction stands discharged and there is therefore no need to issue your application.”
[6]On 10 September 2004, Dr Pelling wrote to the Head of the Civil Appeals Office a letter threatening judicial review proceedings if the application was not issued by 24 September 2004. On 1 October, having not received a reply, Dr Pelling filed a claim for judicial review of the decision not to issue the injunction application in the Administrative Court. He applied for that application to be expedited. On 6 October 2004, in reply to the letter of 10 September, the Head of the Civil Appeals Office wrote to Dr Pelling in these terms:
“The decision not to issue your new application in your 1996 appeal was one taken by a court officer having consulted with a Lord Justice. As such, there is a right to ask the Court of Appeal to reconsider the decision (CPR 52.16 (5)). Such a request has to be filed within seven days of the decision. You are clearly dissatisfied with the decision and queried it, eventually issuing a judicial review. I am treating that correspondence and the request for reconsideration out of time under part 52 and to place the application before the Court of Appeal at an early oral hearing. If you are not content with the course, please let me know by 14 October. Your grounds for judicial review appear to be grounds for reconsideration. If there is further material you wish to submit, please let me have it by that date. In respect of the judicial review, the Treasury Solicitor will be acting on my behalf and will provide the acknowledgment of service.”
[7]On 11 October 2004, Dr Pelling made it clear that he took issue with this approach. On 13 October 2004, the Treasury Solicitor filed summary grounds for contesting the claim for judicial review. All that needs to be said is that it was contended that the decision as to whether to issue an application was a judicial decision of the Court of Appeal, in this case taken by a court officer under CPR 52.16, and the Administrative Court had no jurisdiction to review a decision of a superior tribunal. Furthermore, the claimant had an alternative remedy available to him, namely that a

judge of the Court of Appeal reconsider the matter:

“He has been offered this remedy but has refused it.”
[8]The judicial review application was originally considered by a single judge on 23 June 2005, who took the view that the application had been overtaken by events and was academic, and in any event there was an alternative and correct remedy. Dr Pelling renewed his application at a hearing before Leveson J on 6 September 2005. Leveson J in his judgment dismissing his application said that he noted that the application had been passed to Deputy Master Di Mambro, who sought the views of Thorpe LJ who had presided over the 2004 appeal. Thorpe LJ took the view that the 1996 order stood discharged although “it is not clear from any of the judgments that I have read that any particular order was made to that effect”, and later in paragraph 9 of his judgment he said:
“I start with the order which is the subject of this application. It was an injunction granted by the Court of Appeal (Civil Division). Whether it can be discharged in proceedings other than the Court of Appeal is not a matter which falls for me to decide, but it has not been suggested that it is not open to the Court of Appeal in an application in the original proceedings to discharge or modify the terms of the injunction which was granted. Indeed that is precisely what Dr Pelling seeks.”
He upheld the view expressed by the single judge that there was an alternative remedy available, which had been offered.[9]In my judgment, the approach of the judges in the Administrative Court and the approach of the Head of the Civil Appeals Office was quite correct. An issue had arisen as to whether an appeal notice should be filed in the Court of Appeal; that had to be determined judicially under the rules. Jurisdiction is given to the Deputy Master in the Civil Appeals Office by CPR 52.16:
“(1) A court officer assigned to the Civil Appeals Office who is (a) a barrister or (b) a solicitor, may exercise the jurisdiction of the Court of Appeal with regard to the matters set out in paragraph 2 with the consent of the Master of the Rolls. “(2) The matters referred to in paragraph 1 are (a) any matter incidental to any proceedings in the Court of Appeal […] “(4) Decisions of a court officer may be made without a hearing. “(5) A party may request any decision of a court officer to be reviewed by the Court of Appeal … [I do not think I need to read any further part of that rule].”
[10]This was the course suggested to Dr Pelling by the Head of the Civil Appeals Office in October 2004. This was the correct course to adopt, and accordingly I refuse permission to appeal against the judgment of Leveson J.[11]I turn to the application for reconsideration of the Deputy Master’s order. In my judgment, it is appropriate for Dr Pelling’s application to be issued. There is an added twist in this case because in April 2005 the Divisional Court heard an application by the Attorney General against Dr Pelling in a case under the title Attorney General v Michael John Pelling [2005] EWHC 414 Admin. That case related to the steps taken by Dr Pelling to publish a judgment given in private by Judge Goldstein, not only in a journal but also on the Internet. The Divisional Court was satisfied that this constituted a contempt of court, but during those proceedings Dr Pelling gave an undertaking to the court that he would not publish any further judgments given under the Children Act or any private information given in Children Act proceedings until and unless the judgment of the Divisional Court was overturned.[12]In these circumstances it appears to me to be appropriate, if Dr Pelling reissues his application, that once it has been filed and any necessary direction for fee exemption has been given, the papers should be placed before one of the Lord Justices of this court who specialises in family law matters. He should then consider, always bearing in mind the undertaking Dr Pelling has given to the Divisional Court, whether he can make an order without notice, subject of course to the right of any party affected to complain about the order. If he did take that course and decided to discharge the 1996 injunction, then there would be no need for any further proceedings to be taken in the matter.[13]All I need do today is to dismiss the application for permission to appeal against the Leveson J’s judgment and allow Dr Pelling’s application for reconsideration of Deputy Master Di Mambro’s order, and grant him permission, if so advised, to file his application notice which has been returned to him, all over again.[14]This judgment raises issues of general interest, and I release it from the usual restrictions on citation.15. (ii): Application for reconsideration allowed. Permission to file application notice16. granted.