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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Opoku, R (on the application of) v Principal of Southwark College & Anor [2002] EWHC 2092 (Admin) (17 October 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2092.html Cite as: [2002] EWHC 2092 (Admin), [2003] 1 WLR 234

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IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th October 2002

Mr Justice Lightman:

INTRODUCTION

1. On Monday the 7th October 2002 I began the hearing of an application by the Claimant Mr Opoku (“the Claimant”) made with the permission of Collins J for judicial review of the decisions of the first Defendant the Principal (“the Principal”) of Southwark College (“the College”) on the 16th June 2000 to exclude him from the College and of a panel of the Governors of the College (“the Governors”) on the 11th December 2000 to dismiss an appeal from the decision of the Principal.
2. The application for permission to apply for permission had been made on two grounds, namely: (1) the breach of the Claimant’s right under Article 6 of the European Convention on Human Rights (“Article 6”) to determination of his civil right not to be excluded save by a decision on the disciplinary charges laid against him by an independent tribunal; and (2) procedural unfairness in that immediately prior to the hearing before the Governors the Principal met with the Governors alone in her office which constituted conduct which would lead a fair minded and informed observer to conclude that there was a real possibility that the Governors were biased. Burton J on the application on paper refused permission on either ground. At the renewed oral hearing Collins J gave permission on the Article 6 ground but refused it on the procedural unfairness ground.
3. On Tuesday the 8th October 2002, having heard argument on the Article 6 ground, I dismissed the application. The reason for my decision was that, in the absence of any claim or evidence that there is any issue of primary fact requiring determination, this court on the hearing of this application for the judicial review had full jurisdiction to deal with the case as the nature of the decision required and that accordingly the determination of his claim to a civil right (assuming that he had a civil right) was compliant with Article 6 standards.
4. The Claimant thereupon applied for permission to challenge the decision of the Governors on the ground of procedural unfairness notwithstanding the fact that permission to challenge the decision on this ground had been refused both on paper and at the renewed application. The consideration of this application requires a more detailed account of the hearing before Collins J.
5. In response to the application based on procedural unfairness the Principal had provided a witness statement of which paragraph 11 reads as follows:

“I am aware that it is alleged that prior to the hearing on 6 December 2000 I had a meeting with the panel of Governors who heard the appeal. This allegation is untrue. On 6 December the Governors had been given the use of my room to meet before the hearing took place. I had been out of my office that afternoon dealing with other matters and returned just before the hearing was due to start at 5.00 pm. I went into my office to see if the Governors were ready to begin their hearing. They were not. I collected my papers, the post on my desk and my bag. I was in my office (with the Governors) for one or two minutes at most. During that time, I did not speak with them about Mr Opoku’s appeal or anything in connection with it. As soon as I had collected my handbag and the papers, I left my office and went to attend to my post and deal with other College business before the governors hearing started. I returned to my office about half an hour later for one or two minutes at most to collect some more papers, and left again. In order to avoid any doubt I would also confirm that I did not discuss the appeal with the governors [sic] on any other occasion prior to the hearing on 6 December, or at any time after the hearing.”

According to an attendance note of the hearing, having read that statement Collins J stated to Mr Wolfe, Counsel for the Claimant: “I assume that you are dropping that [ground of challenge] in the light of the evidence given”. Mr Wolfe replied: “Yes, in the light of your direction [my] Lord, yes”. The application for permission on that ground was not further pursued. Both parties are content that I should proceed on the basis that Collins J refused permission.

6. The Claimant did not appeal against this refusal. But in or about July 2002 the Claimant’s solicitors notified the Defendants’ solicitors of the intention to make a fresh application at this hearing for permission to challenge the decision of the Governors on this ground. The Defendants strenuously opposed the application.

ISSUES

7. The issues raised by the application are fourfold: (1) whether the High Court has jurisdiction to grant permission on an issue where permission has previously been refused both on paper and at an oral hearing and there has been no appeal to the Court of Appeal; (2) if the Court has jurisdiction, what approach should the Court adopt and what (if any) principles should it apply in deciding whether to grant permission; (3) whether leave should be granted in this case; and (4) the merits of the challenge on the grounds of procedural unfairness. Counsel informed me that questions 1 and 2 are of substantial practical importance, on which there is no guidance in the Civil Procedure Rules or in any authority or textbook and on which guidance is required. I accordingly reserved to enable me to prepare a considered judgment.

(1) Jurisdiction

8. Mr Clive Lewis, counsel for the Defendants, submitted that there is no jurisdiction to grant permission in a case such as the present where previously applications for permission had been refused both on paper and on renewal at an oral hearing. The only avenue for permission is an appeal (if necessary out of time) to the Court of Appeal.
9. Before looking at the CPR, it is appropriate to consider the legal status of the decisions refusing permission. They are interlocutory judgments which (by reason of the fact that they are not final) do not bring into play the doctrine of res judicata (see e.g. Phipson on Evidence 15th edition paragraph 38-05). That doctrine accordingly does not preclude a renewal of the application, but a repeat application may be dismissed as an abuse of process unless “new material” is placed before the Court (see e.g. Wagstaff v. Jacobowitz [1884] WN 17).
10. I turn now to the CPR. CPR 54.15 provides that the court’s permission is required if a claimant seeks to rely on grounds other than those for which he has been given permission to proceed. The Practice Direction - Judicial Review CPD 54.11 (supplementing CPR 54.15) provides that, when a claimant intends to rely on additional grounds at the hearing of the claim for judicial review, he must give notice to the court and to any person served with the claim form no later than seven clear days before the hearing or the warned date where appropriate. Implicit in the language of the provisions of the Rule and Practice Direction is a power conferred on the court to grant such permission in any case where permission is required, and their language is apposite to an application of the character under consideration in this case.
11. CPR 54.12 provides that, where the court without a hearing (i.e. on the papers) refuses permission to proceed or gives permission subject to conditions or on certain grounds only, the claimant may not appeal but may request that the decision be reconsidered at an oral hearing. This rule was complied with when the application was renewed before Collins J. It has no application to the situation before me, but the perceived need to make provision precluding any appeal from a refusal on paper is indicative that the scheme of the Rules requires that a challenge to any other decision, and in particular a decision at an oral hearing, should be by way of appeal to the Court of Appeal.
12. That this is so is made plain by CPR 52.15. This rule provides that, where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking permission may apply to the Court of Appeal for permission to appeal. Such application must be made within seven days of the decision of the High Court to refuse permission to apply for judicial review. Mr Wolfe, counsel for the Claimant, submitted that this rule did not apply in a case such as the present where the decision of the High Court granted permission on one ground but refused it on another, because it could not be said in such a case that permission to appeal had been refused. I disagree. The rule plainly applies both to a decision to refuse permission on any grounds and a decision to grant permission on some grounds but not others or subject to conditions. It was accordingly open to the Claimant to make such an application to the Court of Appeal in this case, but he did not do so.
13. In summary, there is no specific limitation imposed by the CPR on the power of the High Court to grant permission on a ground where permission has been previously refused. But the Rules make plain that an appeal to the Court of Appeal, and not a fresh application, is appropriate where a challenge is made to the correctness of such a refusal. The common law doctrine of res judicata does not preclude a fresh application. But a fresh application unless based on fresh material may constitute an abuse of process.
14. It is important that there should be read into the Rules no limitation on the jurisdiction of the High Court to grant permission on a fresh application. There may be circumstances where notwithstanding the previous refusal of permission a second application may be appropriate or necessary. The previous decision may have been correct and not open to challenge at the time the decision was made, but circumstances may have materially altered, new evidence may have come to light or the law may have significantly changed (e.g. by a reversal of a decision of the Court of Appeal by the House of Lords). It would be calculated to cause inconvenience and injustice if the High Court were precluded from granting permission in such circumstances (consider Spencer Bower, Turner and Handley on Res Judicata 3rd edition paragraph 172). Rather than reading any such limitation into the Rules it is appropriate to reflect the need for caution in the exercise of the jurisdiction and the need for respect for the legitimate expectations of previously successful defendants in the principles governing the exercise of the discretionary jurisdiction.

EXERCISE OF DISCRETION

15. Guidance on the respect to be afforded to a previous interlocutory order on a fresh application raising the same issues as were raised or capable of being raised on the previous application is to be found in the judgment of the Court of Appeal in Chanel Ltd v. FW Woolworth [1981] 1 WLR 485. In that case on the interlocutory application by the claimants for relief in respect of alleged infringements of trade mark and passing off the defendants gave undertakings until judgment or further order. Shortly thereafter the Court of Appeal in another case (Revlon v. Cripps [1980] FSR 185) upheld the validity of a defence to the action which had been open to the defendants at the time of the application. The defendants thereupon applied for the discharge of the injunction relying on the Court of Appeal decision and filed evidence to establish that defence. The Court of Appeal refused to discharge the injunction. Buckley LJ (with whose judgment Shaw and Oliver LJJ agreed) said:

“When the motion for an injunction came before the judge inter partes, the defendants did not seek any adjournment to permit them to put in evidence in answer to the plaintiffs’ evidence. They might then have asked for a sufficiently long adjournment to permit them to make the company searches which they made in May, and possibly to search for corroborative evidence in the form of advertising material and so forth, to build up a case for saying that a relevant group structure existed in this case. They did not do so, probably because it had not then occurred to their advisers that evidence of this kind might assist them in accordance with the reasoning on which the Revlon decision was based. The fact that the Revlon decision had not then taken place is, in my view, no ground for saying that the defendants might not have succeeded in resisting the option successfully on parallel reasoning. Let me assume (which I am not deciding) that the evidence now available would have enabled the defendants to succeed on those lines if such evidence had been adduced before Foster J in April 1979 and they had resisted the motion on Revlon lines. Ought they to be allowed to reopen the matter six months later, having armed themselves with evidence which they could have obtained on the earlier occasion but failed to do so? In my judgment, the answer should be ‘No.’

The defendants are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adequate adjournment, which they would probably have obtained. Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. The fact that he capitulated at the first encounter cannot improve a party’s position. The Revlon point was open to the defendants in April 1979, notwithstanding that this court had not then decided that case. Some at least of the new evidence was readily available to them at that time.

In my judgment, there has been no change, since April 6, 1979, in the potential ability of the defendants to resist the plaintiffs’ motion successfully, sufficient to justify a court in discharging or modifying the undertakings which the defendants then offered and gave.”

16. Following the guidance afforded by Buckley LJ, the relevant principle must be that the court should give proper respect to the provisions of CPR 52.15 which lays down the normal appropriate route to be followed where an application for permission has been refused and to the legitimate expectation of the defendant that in the absence of an appeal to the Court of Appeal the threat of litigation is at an end. The court should only exercise its discretion to grant permission where the claimant establishes that there has been a significant change of circumstances or that he has become aware of significant new facts which he could not reasonably have known or found out on the previous unsuccessful application or that a proposition of law is now maintainable which was not previously open to him. If the fresh application merely relies on evidence which was available and on propositions of law which were reasonably maintainable on the previous unsuccessful application, permission should be refused as an abuse of process.

(2) Grant of Permission

17. It is clear and indeed conceded that the Claimant’s application does not comply with the test set out above. There is no change of circumstances, no newly available evidence and no change in the law. It is irrelevant whether the Claimant abandoned his application for permission or whether it was dismissed. I must therefore exercise my discretion to refuse permission.

(3) Merits

18. The application is totally lacking in merit and I would in any event refuse permission on that ground. The circumstances in which the Principal “met” the Governors in her room are fully set out and explained in her statement. If evidence were adduced of a meeting between the Principal and the Governors prior to the hearing and there was no evidence explaining why the meeting occurred and or recounting what took place at the meeting, it might be possible to conclude that there was a real possibility of bias. But I agree with Collins J that, in the light of the explanation and account given by the Principal, the meeting in this case could not lead any fair-minded and informed individual to conclude that there was any real possibility of bias. This view is supported by the decision of Latham J in Joyce v Dorset CC [1997] ELR 26. In that case Latham J held that an innocuous conversation between an officer of the local education authority and a member of the special educational needs tribunal at the end of the evidence and before the tribunal retired to consider its decision provided no basis for the conclusion that there was any real danger or real likelihood of bias on the part of the member. The test of bias applied was not the test later authoritatively laid down by the House of Lords in Magill v. Porter [2002] 2 WLR 37, namely the existence of any real possibility of bias, but quite plainly his conclusion would have been the same whichever test was applied.

CONCLUSION

19. I accordingly refuse permission.