Burton, R (on the application of) v Solihull Metropolitan Borough Council [2012] EWHC 1404 (Admin)

Case No CO/12088/2011[2012] EWHC 1404 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Venue Birmingham B4 6DSDate Thursday, 22nd March 2012
B e f o r e:
HIS HONOUR JUDGE ROBERT OWEN QC
(Sitting as a Judge of the High Court)
Between
THE QUEEN ON THE APPLICATION OF BURTONClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantSOLIHULL METROPOLITAN BOROUGH COUNCILDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Masters (instructed by Lester Morrill) appeared for ClaimantMr Warren (instructed by Treasury Solicitor) appeared for DefendantMr Richards & Miss Osmund-Smith (instructed by Solihull Metropolitan BC) appeared for Second Defendant
J U D G M E N T
[1]HIS HONOUR JUDGE ROBERT OWEN QC: this is an application made without notice on behalf of the claimant, Noah Burton, for an order that these proceedings be transferred to London on the ground that there has been a material irregularity in the listing of the proceedings by those responsible for listing at the Administrative Court at the Birmingham Civil Justice Centre. The proceedings were originally instituted in London but were (regularly) transferred to Birmingham.[2]On 21st February 2012 His Honour Judge McKenna, sitting as a judge of the High Court, conducted a telephone hearing attended by the solicitors acting for each of the parties in this matter.[3]The principal business before the learned judge appears to have been whether or not the hearing of the claimant's appeal, which was listed to take place the following day, should proceed or whether it should, as the claimant sought, be postponed to allow further steps to be taken on his behalf for the preparation and presentation of that appeal.[4]The learned judge directed that the hearing of that appeal should in fact be postponed and re-listed on 22nd March 2012. It was common ground that the separate proceedings concerning the claimant and the second defendant in these proceedings, the Solihull Metropolitan Borough Council, that is, the Council's outstanding application for a final injunction, should conveniently be heard after the hearing of the appeal.[5]There is some concern in the minds of the claimant and his instructing solicitor, articulated on their behalf by Mr Masters who appears on behalf of the claimant, about the manner in which the order was determined for the hearing of the appeal and the injunction proceedings. The suggestion is that the listing of these matters may have been the result of undue and improper pressure exerted by a third party, perhaps (Mr Masters could not be more firm) at Secretary of State level or in any event perhaps, as I understood his submissions, through one of the representatives of a local opposition group known as RAID over staff. Thus, before the appeal was opened an application on behalf of the claimant that this matter be re-transferred to London was made by Mr Masters.[6]The basis for that application is set out in a witness statement of the claimant's instructing solicitor, Mr Keith Coutrey, (his third witness statement) dated 21st March 2012. This statement refers to a telephone call which took place between a secretary at his firm and a member of staff at the Administrative Court employed at the Birmingham Civil Justice Centre, during which the secretary was told by that member of staff that he had spoken already “to RAID", a non-party about listing. The concern expressed on behalf of the claimant is that since there has been an irregular discussion between a member of the court staff and RAID the claimant has lost confidence in, as I understood it, the Birmingham Civil Justice Court Centre, as a whole and in particular the staff which operate the Administrative Court in this building and thus the court and its procedures.[7]Mr Masters explained that the concern is that the court – which I understood to mean the judge(s) sitting in the Birmingham Civil Justice Centre - in these circumstances would or might not appear to be independent to the reasonably informed and objective bystander. He stressed that there was no personal criticism in any way of the character or judicial acts of His Honour Judge McKenna, who directed that this matter be heard today and that the injunction proceedings should follow the hearing of the appeal, or indeed of Beatson J, who determined an application made by the claimant on 1st March 2012 (the date of the sealed order) and refused the claimant’s application to have this matter re-transferred to London. The learned judge noted that the matter had been transferred from London to Birmingham by the Deputy Master on 8th February 2012 and that the correspondence from the claimant's solicitors made reference to both sets of proceedings and it was suggested that the most cost efficient and sensible approach to dealing with those matters was indeed for the proceedings to be listed together, to be heard consecutively. It is evident that all material factors were taken into account by Beatson J including the evidence lodged in support of that application (which was issued on 27th February 2012) and which exhibited a number of documents generated by RAID the purpose of which (it appeared) was to vilify or impugn the character of the claimant. All of those matters were before the learned judge who dismissed the application for retransfer. The learned judge noted that the mere assertion of a generalized and unsupported allegation of bias was not and could not be a proper basis for an application to transfer. In developing his submissions before me Mr Masters relied upon essentially the same evidence which was before Beatson J.[8]In seeking to cloak or cloth the submissions, relating to appearance of bias on the part of the staff and thus the court generally or its procedures, with a legal basis Mr Masters drew my attention to R (Alconbury Developments Ltd & Ors) v Secretary of State for the Environment, Transport and Regions [2003] 2 AC 295 to highlight the established principle that the Secretary of State (who was being impugned in the present case) could not be regarded as an independent and impartial Tribunal established by law for the purposes of Article 6 (ECHR). In particular, Mr Masters drew my attention to paragraph 48 which in turn cited an extract from Wade & Forsyth on Administrative Law 8th edition:
"It is self-evident that ministerial departmental policy cannot be regarded as disqualifying bias. One of the commonest administrative mechanisms is to give a Minister power to make or confirm an order after hearing objections to it. Procedure for the hearing of objections is subject to the rules of natural justice, in so far as they require a fair hearing and fair procedure generally. But the Minister's decision cannot be impugned on the ground that he has advocated the scheme or that is known to support as a matter of policy. The whole object of putting the power into his hands is that he may exercise it according to government policy."
[9]Mr Masters emphasised the need for there to be access to a fair and impartial tribunal (or court) and to a fair procedure generally. The submission was that in light of the telephone conversation to which I have referred and the manner and timing of the grant to the claimant of public funding (by the Legal Services Commission) for these proceedings there is demonstrated a proper basis, that is a real not fanciful basis, to suspect that that the court’s procedure which underpins this hearing, is not fair or at least may be seen by a reasonable and objective and informed bystander not to be fair and would thus fatally taint in some way the hearing before me. The application and supporting submissions seemed to me to be without any realistic or proper foundation. The reference to the timing of the grant of public funding was that in some unexplained way there had been an irregularity and collaboration between the Secretary of State (or those acting for him) and the Commission over the grant or the timing of the grant of public funding. The claimant enjoys the benefit of public funding in these proceedings.[10]Mr Master’s submission was opposed by Mr Warren on behalf of the Secretary of State and Mr Richards for the Solihull Metropolitan Borough Council. They submitted that whatever might be in the minds of the claimant and his instructing solicitor and whatever their concerns may be, as articulated by Mr Masters, those alleged concerns could not have any impact on matters of substance before the court but in any event, they have been overtaken by the judicial acts in regularly conducted judicial hearings before Judge McKenna and Beatson J, in respect of whom it has been expressly reiterated that there is no suggestion whatsoever of any actual or potential bias which could reasonably be taken to undermine confidence in the proceedings. I should add that the same reassurance in relation to my position at this time was repeated by Mr Masters. That is, there was no suggestion that my ability properly to hear the proceedings today was impugned. For my part, it is clear that whatever conversation took place between a member of the court staff and a person apparently from RAID in respect of the listing for the hearing it has no relevance to the business before the court or the manner in which that business will be determined before me today. It was common ground before Judge McKenna that the two sets of proceedings be determined by the same judge consecutively and that was clearly the appropriate method of dealing with the proceedings.[11]I am satisfied in any event that there is no proper basis to support this (renewed) application for retransfer. The matter was dealt with regularly and in light of the material presented by the claimant (which is repeated before me today) by Beatson J. There was no appeal from the learned judge’s decision. The application is without merit.[12]Whatever may be of concern to the claimant and those who support the claimant, there is no proper basis in fact or in law which could justify the application. There is no merit in the assertion that there has been, arguably (or at all) material unfairness in the procedure governing these proceedings. In the circumstances, for those reasons, this application is dismissed.[13]In the course of his submissions Mr Masters hinted or suggested at one point that adequate time may not have been allowed for the preparation for the presentation of the appeal today. Whilst that was a matter which had been raised and was of concern to those acting on behalf of the claimant on 21st February 2012 there is no reason to suppose that that concern is real as matters stand today. The suggestion was not frankly advanced by Mr Masters, therefore I may have misunderstood him on that point.[14]In so far as it is suggested that there was before me, presented in proper form, an alternative and sound application to adjourn on the ground of want of time for proper presentation of the appeal I could not accede to that application either and I would reject that application also.