Kevin Gregory v Thames Magistrates Court [2025] EWHC 3221 (Admin)

[2025] EWHC 3221 (Admin)Case No CO/4667/2022 &AC-2022-LON-003546
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 December 2025
Before
MRS JUSTICE LANG DBE
Between
KEVIN GREGORYAppellantTHAMES MAGISTRATES COURTResponde ntLONDON BOROUGH OF TOWER HAMLETSInterested Party
Neil Berragan (instructed by Harrison Carter) for AppellantMichael Paget (instructed by J E Baring Limited) for Interested Party for The Respondent did not appear and was not representedHearing Hearing date: 26 November 2025
Approved JudgmentThis judgment was handed down remotely at 10 am on 9 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE LANG DBE
[1]The Appellant seeks to appeal by way of case stated against the decision of Thames Magistrates Court (“TMC”) to refuse to state a case, on 8 and 9 November 2022.[2]The following applications by the Appellant were listed for determination by the court on 26 November 2025.[3]First, an application to vacate or adjourn the hearing. This is no longer being pursued.[4]Second, the Appellant’s renewed application to set aside the order of Murray J., dated 23 January 2024, striking out the appeal for want of jurisdiction. The Appellant now concedes that the Court does not have jurisdiction to hear an appeal by way of case stated, and instead seeks to convert the appeal into a claim for judicial review.[5]Third, the Appellant’s application to vary Foster J.’s order dated 6 August 2024, for an oral hearing in respect of the application to set aside Murray J.’s order. This is no longer being pursued.[6]Fourth, the Appellant’s application dated 13 December 2024, to set aside Lavender J.’s order, made on 6 December 2024, in which he dismissed the application for an order requiring an authorised person at TMC to sign the notice of refusal to state a case, certifying it as totally without merit, and refused to set aside or vary Foster J.’s order for an oral hearing.[7]The Appellant included in his application notice dated 13 December 2024 an application that the Court exercise its inherent case management powers to convert the appeal by way of case stated into a judicial review claim under the same claim number. Proceedings at TMC[8]At a hearing on 28 June 2022, 2 lay Justices sitting at TMC refused the Appellant’s application to set aside council tax liability orders, in respect of a number of properties over several years, which were outstanding against the estate of his late father, Francis Gregory (“FG”). The Appellant’s application, made by summons, was on the basis that the court had no jurisdiction to make a liability order under regulation 36A of the Council Tax (Administration and Enforcement) Regulations 1992 (“the Council Tax Regulations 1992”). The Appellant stated that he applied as a representative of his father’s estate, and not in his personal capacity. However, TMC found that he was not an executor of his father’s estate at the time the application was made and therefore had no standing. The Justices declined jurisdiction to hear and determine the application.[9]Both the Appellant and the London Borough of Tower Hamlets (“the IP”) were represented at the hearing. TMC ordered the Appellant to pay the IP’s costs in the sum of £5,065. The costs order was subsequently confirmed by an order issued on 6 September 2022. The IP has since issued a statutory demand in respect of the costs awarded.[10]On 19 July 2022, the Appellant’s solicitors applied to TMC to state a case for the opinion of the High Court, asking the following questions:
“1. Were we wrong to dismiss the summons, listed only for Case Management directions? 2. Did we have jurisdiction to dismiss the summons, when it had been issued on the direction of District Judge at Thames Magistrate Court? 3. Were we wrong not to apply the Civil Procedure Rules 1997, specifically Rule 19.8(1)(b), when probate has not yet been granted for the estate of the late Francis Gregory and there is a lacuna in dealing with such consequences of death in Part II Civil Jurisdiction and Procedure of the Magistrates Court Act 1980 which CPR r. 19.8(1)(b) fills, particularly in the light of: (a) the approach taken by Scott-Baker LJ and Cranston J in Cleveland Police v Vaughan [2009] EWHC 2831 (Admin); (b) the Civil Procedure Act 1997, Schedule 1, para. 5; (c) the wider meaning of “claim” as used, for example, in CPR r. 19.5A(2)(b) and in (taken together) CPR r. 19.7(1)(a), 19.7(2) and 19.7(3)(b)? 4. Were we wrong to dismiss the summons without receiving and considering any written or oral evidence under oath? 5. Did we have jurisdiction to make an order for costs against Mr Kevin Gregory when we had not heard the complaint? 6. Were we wrong to make an order for Mr Kevin Gregory to pay costs in the sum of £5,065, without hearing from Mr Gregory as to; a) whether he had been served the schedule of costs of the London Borough of Tower Hamlets; and if so; b) what day and time had the scheduled been sent to him c) his means?”
[11]No response was received and so chasing emails were sent on 24 August and 23 September 2022.[12]In a decision headed ‘Refusal to state a case…..’ dated 31 October 2022, and sent on 8 November 2022, the Justices declined to state a case on the grounds that the request was frivolous, under section 111(5) of the Magistrates Courts Act 1980 (“MCA 1980”). They added that “this document should be regarded as a certificate refusing to state a case”. A revised version of essentially the same decision was sent on 9 November 2022. In my view, the most likely explanation for this is that the first draft had not been finally approved when it was sent out in error on 8 November 2022. The revised version, which is at page 55 of the Appellant’s bundle, and has sub-headings throughout is the intended final version, as Mr Paget submitted.[13]The Justices referred to the earlier proceedings involving the Appellant’s father, FG.[14]On 17 November 2022, the Appellant filed an appeal by way of case stated against the orders made by the Justices on 28 June 2022 and the refusal to state a case dated 31 October 2022. The relief sought was a declaration that the Justices were wrong to decline jurisdiction, an order to quash their decisions, to stay enforcement of the costs order, and make an order of mandamus for a re-hearing. The appeal was issued by the court on 12 December 2022.[15]On 23 December 2022, the IP filed its Response to the appeal in which it submitted that the the appeal should be dismissed and certified as totally without merit. As TMC refused to state a case, there was no case stated for the opinion of the Court at an appeal by way of case stated. Consequently there was no jurisdiction to determine the appeal under section 28A of the Senior Courts Act 1981. Proceedings in the High Court[16]In January 2024, Murray J. struck out the appeal for want of jurisdiction. His reasons were as follows:
“Given that the respondent court refused to state a case, the appellant should have proceeded, if at all, as provided in section 111(6) of the Magistrates’ Court Act 1980, namely, by seeking permission to apply for judicial review of the respondent court’s refusal to state a case. 4. As this decision was made on a review of the papers without a hearing, any affected party has the right to apply for the order to be set aside, varied, or stayed. The appellant may, however, wish to consider whether the proper course is not to seek to vary or set aside this order but rather to make an application for judicial review of the respondent court’s decision to refuse to state a case. The appellant is advised to seek legal advice about this before proceeding, including regarding the merits of such a course of action. I express no view as to whether any such application would have any prospect of success.”
[17]On 29 January 2024, the Appellant applied to set aside Murray J.’s order but did not engage with the jurisdictional problem.[18]On 6 August 2024, Foster J. adjourned the application to an oral hearing to be listed as soon as possible after 1 October 2024, with a time estimate of 2 hours. In her reasons she stated: “2. The respondent court refused the appellant’s application to state a case and sent the appellant two versions of a note to this effect, each dated 31 October 2022, one sent on 8 November 2022 and the other on 9 November 2022….the issuance of two notes appears simply to have an administrative error. Each note stated that it should be treated as a certificate of the court refusing to state a case for purposes of CrimPR 35.2(5)(b). This means of course the appellant required to treat the refusal as a decision to refuse to state a case and should have sought to judicially review it. See section 111(6) of the Magistrates’ Court Act 1980.[19]Foster J. set out Murray J’s reasons and observed as follows:
“3. …. The appellant duly made an application on 29 January 2024 to set aside the Order of Murray J but has not progressed what is likely to be the correct form of legal attack upon the Court order below, namely an application for judicial review of the decision to refuse to state a case. 4. The Appellant was advised to seek advice by Murray J. I repeat that advice, again without indication of the likelihood of success of any application for permission for judicial review.”
[20]On 19 August 2024, the Appellant applied to vary or set aside Foster J.’s order and applied for an order requiring an authorised person at TMC to sign the notice of refusal to state a case, and to stay any hearing until after it had been signed. The Appellant requested that the Justices comply with Part 3 of Practice Direction 52E, paragraph 3.2 which requires a minister or tribunal to sign a case stated. However, as the IP pointed out, section 3 does not apply to Magistrates Courts, they are dealt with in section 2 which does not have a requirement for a signature. In any event, these provisions apply where a case is being stated for the opinion of the High Court. The document we are concerned with here is a statement of reasons for a refusal to state a case, not a case stated.[21]On 6 December 2024, Lavender J. dismissed the application for an order requiring an authorised person at TMC to sign the notice of refusal to state a case, and certified it to be totally without merit. He found that it was not necessary for the purpose of determining the application for an order setting aside Murray J.’s order since that order pre-dated the application and was made on the basis of the documents which were then before the court. There was no requirement to sign such a notice in Criminal Practice Rule 35.2(5).[22]As to the oral hearing, Lavender J. concluded that as Murray J.’s order was made on the papers it was appropriate for any application to set it aside to be considered at a hearing. Foster J.’s ruling to that effect was not even arguably wrong. All the Appellant’s applications should be heard at one oral hearing.[23]On 13 December 2024 the Appellant applied to set aside Lavender J.’s order dismissing the application for an authorised person at TMC to sign the refusal notice. He also applied for this appeal – AC-2022-LON-003546 – to be converted into a claim for judicial review. The application also included new technical challenges to the validity of TMC’s decision.[24]Thereafter there was significant delay in fixing this hearing mainly because of the Appellant’s requests to await the outcome of an application for exceptional case funding under the legal aid scheme. In July 2025, the Appellant’s solicitors confirmed that exceptional case funding was not available. On 30 September 2025 the hearing was listed for 21 October 2025 but rescheduled to 26 November 2025 because the Appellant was seeking more time to obtain legal aid.[25]On 6 October 2025 the Appellant applied to set aside the hearing on 26 November 2025, until the determination of the Appellant’s application for legal aid, namely, an individual case contract, which is a one-off legal aid contract for a specific case required by legal professionals who do not have the appropriate legal aid contract. His solicitors had to obtain accreditation from the Legal Aid Board in order to act for him, as they do not have a legal aid contract. The Appellant said he had approached some 60 legal aid solicitors, all of whom declined to take on his case.[26]Before the hearing the Appellant asked me to determine the adjournment application on the papers, but judging from the history of the case, any adverse decision would be likely to result in an application to set aside, thus inevitably resulting in an adjournment. The IP was strongly opposed to an adjournment. It submitted that the application for legal aid was unlikely to succeed and delay of over three years was unacceptable. I declined to determine the application for an adjournment on the papers, in view of the history of the claim, and instead decided that it ought to be determined at an oral hearing. I directed that the application for an adjournment should be determined at the commencement of the hearing on 26 November 2025 and, if unsuccessful, the hearing would proceed. Shortly before the hearing, on 24 November 2025, the Appellant’s solicitor notified the Court that the application for an adjournment was no longer pursued. Mr Neil Berragan of Counsel was instructed to appear on behalf of the Appellant at the hearing.[27]On 25 November 2025, my clerk sent the following email to the parties:
“The Judge is currently considering whether, if the court lacks jurisdiction to hear the appeal by way of case stated, the claim could or should be converted into a claim for judicial review. This was mentioned by Murray J and Foster J, in their orders, and applied for in the Appellant’s application dated 13 December 2024. The Judge’s preliminary view is that she has inherent power to do so, but she is uncertain whether it would be an appropriate exercise of discretion, bearing in mind the lapse of time, the Appellant’ intention to add the estate as a party, and to rely on grounds which were not pleaded in the appeal (invalidity of the refusal notice). The Judge has not been able to find written submissions from either party on this issue. Please could they come prepared to deal with the matter orally at the hearing tomorrow. If the parties also wish to make representations in writing prior to the hearing, they are welcome to do so, but this is not required.”
Appellant’s submissions[28]At the hearing, the Appellant conceded that an appeal by way of case stated was not the appropriate mode of challenging the Justices’ refusal to state a case. He submitted the correct course was to apply for the appeal to be treated as a claim for judicial review of the refusal. Alternatively, applying the guidance in Sunworld Ltd v Hammersmith & Fulham LBC [2000] 1 WLR 2102, per Simon Brown LJ at 2106F – 2107A, the claim should proceed as a judicial review of the reasoned decision made by the Justices, thus avoiding the need for a case to be stated at all.[29]The Appellant referred to the Court’s general powers under CPR 3.1(2)(m) to take any step needed to manage the case justly, and CPR 3.10 which provides that an error of procedure does not invalidate any step taken in the proceedings unless the court so orders, and the court may make an order to remedy the error. The editors of the White Book provide the following commentary on CPR 7.2:
“In a number of cases decided since the implementation of the CPR, the courts have taken a liberal approach to "technical errors" made by a party, which did not cause any real prejudice to the other party, including issuing a claim on the wrong form. In Hannigan v Hannigan [2000] 2 F.C.R. 650, CA said it was disproportionate, and unjust (under r.1.1) to strike out a claim made on the wrong form when the defendant had been given all the information required to understand what the claimant was seeking.”
[30]In Hannigan, Brooke LJ stated, at [30] – [31]:
“30. It could not possibly be argued, nor did Mr Hornby attempt to argue, that it was the intention of the makers of the Civil Procedure Rules to return to the arid technicalities which had existed before the 1965 rule change. Indeed, in Chapter 12 of his final report on Access to Justice (July 1996) Lord Woolf reiterated his view that the complexity of the present rules of court could be seen as an obstacle to justice, and he instanced in this context the four different ways of starting proceedings in the high court, together with another four in the county court, with further variations within these categories. 31. In order to remedy this mischief, the Civil Procedure Rules introduced the principle of using a single standard claim form for all types of civil proceedings. From 26th April 1999 proceedings of every type are started when the court issues a claim form at the request of a claimant (CPR 7.1): the date entered on the form by the court is the date when the form is issued (CPR 7.2). The staff at the Stafford County Court should never have permitted proceedings to be issued on the form adopted by Mr Durrell in this case, but it must be remembered that these events occurred in the early weeks of the new procedures, when mistakes of this kind were always likely to be made from time to time. 32. Because the questions raised in the proceedings were not likely to involve a substantial dispute of fact, counsel had correctly advised that the Part 8 procedure should be used (see CPR 8.1(2)(a)). It has not been suggested that the claimant's solicitors did not set out all the information required of a claimant using the Part 8 procedure (see CPR 8.2) or that the written evidence on which she intended to rely was not filed with the form which was used as a claim form or served on the defendant with that document (see CPR 8.5(1) and (2)). The problem was the technical one that her solicitors did not use CPR practice form N208 (the Part 8 claim form) to start the claim contrary to paragraph 3.1 of the first Practice Direction supplementing CPR Part 7, and that they also made the other technical mistakes listed earlier in this judgment. 33. I am in no doubt that the manner in which the judge exercised his discretion was seriously flawed, because he wholly failed to take into account the fact that in these proceedings, sealed by the county court within the relevant limitation period, the defendants were given all the information they required in order to be able to understand what order Mrs Hannigan was seeking from the court and why she was seeking it. He concentrated exclusively on all the technical mistakes Mr Durrell had made — the lack of a Coat of Arms, the lack of a 3.5cm margin, the absence of the requisite legend in the top right hand corner of the documents and so on — and in so doing, in my judgment, lost sight of the wood for the trees. The sanction he imposed was also a quite disproportionate response to the procedural irregularities he was considering.”
[31]The Appellant submitted that the Court should exercise its discretion to permit the appeal by way of case stated as an application for judicial review, bearing in mind that the Appellant’s Notice was filed well within the time allowed to issue an application for judicial review, as time ran from the notification of the refusal to state a case on or about 9 November 2022. The Appellant’s Notice set out the substance of the claim, which was the same as the proposed claim for judicial review. Furthermore, the Appellant’s Notice expressly sought relief which can only be granted by way of judicial review, namely, an order of mandamus, which is expressly referred to as the remedy for a wrongful refusal to state a case, in section 111(6). The IP is not in any doubt as to what relief was being sought.[32]In Sunworld, the Divisional Court recognised that the statutory process under section 111(6) MCA 1980 of applying for an order of mandamus to require justices to state a case was cumbersome and unnecessary, where the justices have already set out the relevant facts and matters in its refusal decision. In such a case (as here) the Administrative Court can decide to deal with the application as if it was an application for judicial review of the substantive decision being challenged.[33]The Appellant submitted that TMC erred in several respects and therefore the claim had merit. The TMC ought not to have refused to state a case on the ground that the application was “frivolous”. In this context “frivolous” means “futile, misconceived, hopeless or academic”, seeR v North West Suffolk (Mildenhall) Magistrates Court ex parte Forest Heath District Council[1997] EWCA Civ 1575; [1998] Env LR 9.However, it would be premature for the Court to seek to determine the merits of the challenge at this stage.[34]The Appellant made the application as a representative of the estate on the authority of the executors. The hearing was listed as a case management hearing. As a general principle, substantive determinations should not be made at case management hearings without notice: Jones v Wealth Management (UK) Ltd [2014] EWHC 842 (Ch) [27], [30].[35]The Appellant and his counsel were taken by surprise by the IP’s challenge to the Appellant’s standing at the hearing. They were not given prior notice of this challenge. If they had been given proper notice of the challenge, directions should have been given by TMC for that issue to be considered.[36]However, a contemporaneous email from the Appellant to TMC dated 28 June 2022 (sent after the hearing on the same day) confirmed that he received the email, although initially it was moved to spam, but he only saw it on Saturday 25 June 2022. In the email he complained that the notice given was inadequate.[37]Mr Berragan submitted a different version of events from the Appellant after the hearing before me had concluded. The Appellant’s instructions to Mr Berragan were that the Appellant only found the IP’s email after the TMC hearing. He was prompted to search for it after Mr Paget referred to it during the hearing. That was the first time he became aware of it. At the time the Appellant had issues receiving email in his gmail account inbox and he was using another address for incoming emails.[38]The Appellant submitted that, if he had been given advance notice of the standing point, his legal representatives would have been able to file at court a signed document by the executors, dated 21 December 2020, headed “Authority to Act” which stated that the Appellant had authority to act on behalf of FG’s estate on council tax matters, liability order, and court proceedings. Or they could have applied for the executors to join in the application, or substitute the executors as the complainant. The proceedings before TMC were always for the benefit of the estate.[39]The Appellant’s application to TMC contended that the court had no jurisdiction to make a liability order because, during the relevant years, FG did not receive the bill, the reminder notice and the summons. In response to the IP’s submissions, the Appellant submitted that these were grounds of jurisdiction and procedure upon which the executors were entitled to challenge the liability orders, applying R (Hamdan) v Brighton and Hove Justices [2004] EWHC 1800 (Admin), at [31], [32], [35]. IP’s submissions[40]The IP submitted that Murray J.’s order should be upheld. A claim for judicial review would be hopelessly out of time. The Appellant had been advised to consider an application for judicial review by Murray and Foster JJ but ignored that advice until December 2024. Applying the Denton principles, there was a serious breach of the time limit for commencing a judicial review claim, caused by the Appellant’s unreasonable behaviour. The claim lacked merit or any general public interest.[41]Furthermore, the IP submitted that the Appellant’s claim was flawed. The Justices correctly refused to state a case on the grounds that the request was frivolous. Therefore, even if the appeal by way of case stated was treated as an application for judicial review, permission to apply for judicial review would not be granted.[42]The Appellant lacked standing to make the application to set aside the liability orders. The application was made by a “Representative of the Estate for Francis Gregory” but the Appellant was neither an executor, not an administrator, and had no power of attorney from any executor.[43]The Authority to Act, produced during the hearing on 26 November 2025, had never previously been produced or referred to in these proceedings, either in the Magistrates Court or the High Court. This was so surprising that the IP was concerned that it might not be genuine. Or it may have related to earlier proceedings, not these proceedings. In any event, even if it had been produced at the TMC hearing, it would not have given the Appellant standing. Regulation 58(8) of the Council Tax Regulations 1992 requires the Estate to bring proceedings with or without the benefit of lawyers but not by way of third parties as “representatives”.[44]Although the Appellant alleged that he had no prior notice of the IP’s challenge to his standing, this was countered by Mr Paget (who acted for the IP at TMC as well as in the High Court) who produced an email sent by the IP’s solicitors to the Appellant on Friday 24 June 2022, which attached Mr Paget’s skeleton argument and relevant authorities, which raised the issue of standing. Mr Paget explained that the email was sent to the Appellant’s personal email address because the IP had not been given details of a legal representative acting for the Appellant.[45]The Appellant’s submission that TMC had no jurisdiction to make the liability orders in issue was misconceived. TMC was empowered to do so by section 14(3) and Schedule 4 of the Local Government Finance Act 1992, in combination with regulation 33 of the Council Tax Regulations 1992. There was no procedural error asserted, beyond the lack of jurisdiction point.[46]Furthermore, most of the liabilities underpinning the liability orders had been unsuccessfully appealed to the Valuation Tribunal. Any issue as to liability for council tax is determined on appeal to the Valuation Tribunal (see regulation 571(1) of the Council Tax Regulations 1992; Wiltshire Council v Piggin [2014] EWHC 4386 (Admin)). Proceedings in the Magistrates Court are enforcement proceedings only.[47]The summons had not been made promptly by the Appellant. An application to set aside liability orders will only be entertained when there has been a substantial procedural error, defect or mishap in making the order and when the applicant has acted promptly. Promptness, normally requires action within days or at most a very few weeks, not months and certainly not years. That action needs to be taken when the taxpayer is aware that liability orders have been made or may have been made (see Hamdan at [31] – [32]).[48]FG’s estate had been aware of the liability orders since at the very latest 10 December 2021. The vast majority of these liability orders were subject to a Valuation Tribunal appeal. The IP’s response to the Valuation Tribunal, dated 10 December 2021, expressly stated that liability orders had been obtained. There were seven liability orders that were not part of the appeal. FG had knowledge of these from 2016. Putting the Appellant’s case at its highest there was awareness of all liability orders from 10 December 2021. So even if the application had been made by the estate, it was not prompt.[49]The IP submitted that the Court would not grant any relief in this case, whether generally or under section 31(2A) of the Senior Courts Act 1981 and therefore permission to apply for judicial review ought to be refused. Conclusions[50]I am satisfied that the order made by Murray J. was correct. The Court has no jurisdiction to hear this claim because the Appellant has adopted the wrong procedure. The Appellant would only have acquired a right to appeal by way of case stated if the Justices had stated a case for the opinion of the High Court.[51]The Justices refused to state a case under section 111(5) of the MCA 1980 which states:
“(5)If the justices are of opinion that an application under this section is frivolous, they may refuse to state a case, and, if the applicant so requires, shall give him a certificate stating that the application has been refused;….”
[52]Section 111(6) of the MCA 1980 confirms that where Justices refuse to state a case, a challenge may be made by way of judicial review. It provides:
“(6)Where justices refuse to state a case, the High Court may, on the application of the person who applied for the case to be stated, make an order of mandamus requiring the justices to state a case.”
[53]Both Murray J. and Foster J. suggested that a claim for judicial review was the appropriate course but this advice was not heeded by the Appellant and his legal advisers at the time.[54]Belatedly, in the application of 13 December 2024, the Appellant has applied for this appeal to be treated as a claim for judicial review. I am satisfied that the Court has inherent jurisdiction to make such an order, and that is not disputed by the parties. I refer to Hannigan v Hannigan [2000] 2 FCR 650 referenced in the White Book in the commentary at CPR r.7.2.[55]I turn to consider whether it would be an appropriate exercise of my discretion to make such an order.[56]There has been extraordinary delay since the Justices’ decision was made on 22 June 2022 and the issue of the reasons for the decision on 8 and 9 November 2022. There are strict time limits for commencement of a claim for judicial review, they must be brought promptly, and in any event within 3 months from the date of the decision. However, if I order that the Appellant’s Notice (made on Form N161) should stand as a claim for judicial review (Form 461), there is no new claim and so the date of filing and of issue will remain the same.[57]The reason why the Appellant’s notice was not filed until 17 November 2022 is that the Appellant had to exhaust the case stated procedure. The application to state a case was made on 19 July 2022, so within the 21 day time limit allowed by section 111(1) of the MCA 1980. The response from the court was delayed, and the final version of the refusal to state a case was sent on 9 November 2022. The Appellant’s notice was filed within the time limit of 10 days for an appeal by way of case stated under paragraph 2 of CPR 52 PDE. If the claim had begun by way of judicial review, it would been treated as commenced in time.[58]I accept Mr Berragan’s submission that the claim ought to be treated as a claim for judicial review of the refusal to state a case, rather than an appeal by way of case stated. The Appellant’s solicitors appear to have misunderstood the legal framework and made a technical error in filing the claim as an appeal by way of case stated. Applying Hannigan and having regard to the commentary in the White Book, I consider it would be unjust to shut out the Appellant from pursuing his claim altogether because his solicitors made a technical error.[59]The IP submits that the claim should not be allowed to proceed because it is hopeless, both on the facts and the law. However, the competing submissions of the parties demonstrate significant areas of dispute. New legal submissions and new evidence have been filed very late (immediately before, during and after the hearing) and need to be refined. There are disputed issues of fact, including newly-filed documentary evidence, which need to be addressed in witness statements verified by a statement of truth. It may well be that, once the claim has been properly prepared, it will reach the threshold for a grant of permission to apply for judicial review of the Justices’ refusal to state a case.[60]In Sunworld, Simon Brown LJ identified, at 2106G, a class of case in which it was unnecessary to determine whether a case should be stated:
“(2) If the court below has already (a) given a reasoned judgment containing all the necessary findings of fact and/or (b) explained its refusal to state a case in terms which clearly raise the true point of law in issue, then the correct course would be for the single judge, assuming he thinks the point properly arguable, to grant permission for judicial review which directly challenges the order complained of, thereby avoiding the need for a case to be stated at all.”
[61]I do not consider that the approach adopted in Sunworld would be appropriate in this case because the decision of the Justices in this case does not contain all the necessary findings of fact or raise the points of law in issue, so as to enable this Court to determine the application for judicial review. In fairness to the Justices, the questions posed to them did not fully reflect the factual and legal issues which have now been raised by the parties on the issue of the Appellant’s standing, which include the Authority to Act and whether or not that did confer standing; whether the Appellant and his legal representative had advance notice of the standing point; and whether directions should have been given to give the Appellant and the executors to file evidence on the Appellant’s standing, and/or apply to add the executors to the summons. This list is not intended to be exhaustive.[62]Therefore I will set aside the order of Murray J. striking out the appeal and make an order that the appeal by way of case stated is to stand as a claim for judicial review of the Justices’ refusal to state a case. Directions[63]The Appellant should amend the ‘Case Stated Appeal Facts & Grounds’ by re-naming it as the ‘Statement of Facts and Grounds’ and making such amendments as counsel may advise. The Statement of Facts and Grounds must be filed and served. The amendments should not include the challenge to the lack of a signature on the notice of refusal. Lavender J. has held that the application for an order requiring an authorised person at TMC to sign the notice of refusal to state a case, is totally without merit. His order cannot be challenged in the High Court, only in the Court of Appeal.[64]The Appellant should also file and serve further evidence in support of the submissions made for the purposes of this hearing. All documentary evidence (including documents already filed) must be exhibited to a witness statement and verified by a statement of truth.[65]The IP should then file an Acknowledgment of Service and its Summary Grounds for Contesting the claim. It should also file any further evidence. All documentary evidence (including documents already filed) must be exhibited to a witness statement and verified by a statement of truth.[66]The application for permission to apply for judicial review will then be considered by a Judge on the papers.