B e f o r e :
HIS HONOUR JUDGE GORE
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Between:
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BARTOSIK
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Claimant
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- and -
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INDEPENDENT POLICE COMPLAINTS COMMISSION
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Defendant
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(DAR Transcript of
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The Claimant appeared in person
Mr James (instructed by the IPCC) appeared on behalf of the Defendant.
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HTML VERSION OF JUDGMENT
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His Honour Judge Gore:
- These are applications by the claimant in two separate claims seeking permission to seek judicial review of separate decisions of the Independent Police Complaints Commission. In case number CO/7864/2011, commenced on 17 August 2011, the claimant sought to challenge the decision of the defendant dated 16 May 2011, in which decision it decided that the claimant was out of time for appealing against an alleged earlier failure of the Norfolk Constabulary to deal either appropriately or at all with matters of complaint raised by the claimant. The claim form was issued in Birmingham. HHJ Owen QC refused to transfer it to Leeds by order dated 13 September 2011. HHJ Inglis refused permission without a hearing, on the papers, on 25 October 2011. The court sealed his order on 1 November 2011, and therefore deemed service was two days later.
- On 10 February 2012, and therefore substantially out of time, the claimant issued a Notice of Renewal, alleging that he had not been served with the order of HHJ Inglis. Stadlen J, understandably and properly, treated that as an application for an extension of time to make the renewed application, and on 28 March 2012 he gave directions about filing evidence on this issue. The extension of time was in fact granted by Beatson J (as he then was) on 19 June 2012, and the case adjourned to the necessary oral hearing. It was further adjourned by order dated 8 August 2012, due to the illness of the judge that had been listed to hear the matter, and no other judge having been found to be available to hear it instead. As is clear from the face of the order itself, the claimant was present in court on that occasion (that is, on 8 August) and on that occasion the fresh date of 20 August was given. On 20 August 2012, the claimant is recorded on the face of the order made on that occasion by HHJ Purle QC as having not attended or answered to the public address system, and so the renewed application was struck out.
- By application dated 28 August 2012 (that is, eight days later) the claimant now applies to restore the proceedings and HHJ Purle directed that that application be listed for hearing and, if the application to restore was allowed, the restored renewal of the application for judicial review should follow, and that is therefore listed before me today. In my judgment, the relevant approach for me to adopt, applying always the Overriding Objective in Civil Procedure Rules Part 1, is to consider whether the claimant, who did not attend, has acted promptly in applying to reinstate the matter, had a good reason for not attending and has a reasonable prospect of success in the substantive application he wishes to make.
- I am prepared to accept that the application to restore, made within eight days of being struck out, is sufficiently prompt, thereby satisfying the first criterion. The court file contains a copy of the letter dated 8 August 2012 giving notice of the hearing on 20 August. It was sent to the same address as the earlier notice dated 10 May 2012 for the hearing on 19 June 2012, which letter the claimant himself admits that he received, because he attaches it to his application dated 28 August 2012. I notice, however, that that application (that is, the application dated 28 August 2012) gave, as far as I can see for the first time, a new address for the claimant. Inconsistently with that, he tells me today that he moved to that new address in September, not in August as referred to in the notice of application.
- All original process documents clearly require litigants to identify an address for service, and in my judgment it is clearly incumbent on litigants who change their address to inform the relevant court precisely, so that relevant notices can be served on them. There is no evidence that the claimant did so in this case and no explanation for why not. Nor is there any, or adequate in my judgment, evidence to show where he lived at what time, or that correspondence that was getting to him on other occasions did not get to him on this occasion. Moreover, as Mr James, who appears for the defendants, points out, the hearing date of 28 August 2012, which is the date and hearing that the claimant did not attend, was given in court with the claimant present, as appears on the face of the order, and it was only later written confirmation of that date that may (I put it no higher than that) have gone astray.
- For those reasons and in those circumstances, I do not accept that there was a good reason for non-attendance on 20 August, even if he did not receive the written confirmation, because that arose as a result either of his failure to keep the court apprised of a current address where he could be served with the written confirmation or, worse in my judgment, his failure to abide by the order made in court on 8 August in his presence.
- Moreover there is no alleged error of law in this case, and the reasons given by HHJ Inglis for refusing permission in my judgment are correct and unimpeachable, such that there are no real prospects of success in relation to this application, and accordingly I decline the application to restore, and the order that struck out the proceedings for non-attendance stands.
- As regards claim number CO/7862/2012, the claimant in this case seeks permission to seek judicial review so as to quash the defendant's decision dated 18 May 2012. In the absence of an Acknowledgment of Service, HHJ Pelling QC, by order dated 28 September 2012, granted permission to seek judicial review and gave directions, and so it is that that matter comes also before me today. By letter dated 5 October 2012 the defendant confirmed that it would not be contesting these proceedings. There is, therefore, acknowledgment that the relevant decision must be quashed, and I so order. There was, in fact, a signed document purporting to quash a decision dated 13 September 2012, signed by both Mr James for the defendant and the claimant in person. It erroneously describes the quashing as relating to a decision dated 16 May 2011 and, although it does not shower the defendant generally or Mr James in particular with glory, I accept that it was mistakenly described as referring to quashing of the decision of 2011, when it should have recorded that it was quashing, as was agreed, the decision of 2012, there never in fact having been any agreement, at least according to any evidence that I have seen, that an order relating to the decision in 2011 that was the subject of the other proceedings would be quashed. So it is that the order of 18 May 2012 stands as quashed.
- The only outstanding issues are these. First, the claimant claims costs in the sum of £900, as to which the defendant submits in its skeleton argument that the appropriate order should be no order for costs, and the reasons stated are these:
(checked to audio as document retained by the court)
"6. The claimant is a litigant in person, but is familiar with the judicial review process. He has not, so far as the defendant is aware, incurred any court fees in bringing this action. The defendant had offered to meet the cost of lodging a consent order, but has not received a response to that offer or any explanation for the claim for costs.
7. The claimant did not follow the pre-action protocol, and there was no letter before action. Had the protocol been followed, this matter would have been concluded either without proceedings or, if consent was forthcoming, by an agreed order being lodged with the court. On this basis alone, the court should exercise its discretion to refuse the claimant's application.
8. Any costs incurred by the claimant were unnecessary, and if the court is minded to make an award, then the claimant is put to proof of those costs. If the court accepts that the forthcoming hearing is unnecessary, then the costs of that hearing should be awarded to the defendant."
- The other outstanding matter is that the claimant seeks an order that requires the fresh decision that is to be made by the defendant to be made at, and the investigation conducted at, a particular office. In the defendant's skeleton argument at paragraph 2, it is asserted that that particular office has in fact been closed since January 2012, but more importantly Mr James, in his skeleton, answers this application in the following terms:
(checked to audio as document retained by court)
"9. The defendant is a national organisation. The casework managers who deal with appeals against local police complaint investigations are based in any of the defendant's four offices, or are home workers. The appeal caseload is distributed nationally so as to minimize the delay in having the appeal concluded.
10. The practical decision as to where the appeal work is done is not a matter for the court. The claimant cannot require that the matter is dealt with in the Wakefield office, albeit that he is referring to an office address which no longer exists."
- I have looked at the evidence that has been filed by the claimant pursuant to his requests that I do so and, in particular, at the pamphlet that was published in 2010 explaining the work and procedures of the defendant, and also at the Police Reform Act 2002, and in particular I was taken by the claimant to Schedule 2 paragraph 9, and I was taken by the defendant to Schedule 3. The pamphlet simply does not specify where complaints will be investigated or decided and therefore does not support the claimant's contentions. Schedule 2 paragraph 9, which is relied upon, simply empowers the defendant to set up regional offices and it does not prescribe where complaints should be investigated or decided and therefore again does not, in my judgment, assist the claimant in the submission that he now makes.
- I agree, as is submitted by Mr James, that there is nothing that I have been directed to or can find in the Police Reform Act 2002 that entitles the claimant to require that his complaint, or the investigation thereof, is undertaken at a particular office. What the claimant is entitled to is a decision, not a particular decision maker, and not a particular location for the decision to be taken at. Accordingly that aspect of the claimant's case fails.
- That failing, I return to the question of costs. The claimant having not today succeeded in obtaining any relief other than that for which the defendant had already conceded his entitlement, he has in that sense lost today, and in any event has lost in relation to the other application. Those are factors that in the ordinary course, pursuant to CPR Rule 44, would result in costs following the event and would lead to an order that the claimant pay for the costs of today. But, in the event, the defendants do not seek any order in this regard and seek only that there be no order as to costs. In all of the circumstances, that, in my judgment, is the proper order to make, reflecting the fact that, though I might have been minded to allow the claimant modest costs for the time, trouble and expense associated with issuing and serving the 2012 proceedings, at least up to the point that the concession was made that the order to which it related should be quashed, it seems to me proper to make no specific order in that regard, reflecting on the lack of success in the balance of the applications that the claimant makes.
- Accordingly the orders that I make are: (1) the application to restore proceedings in CO/7864/2011 is refused; (2) as regards proceedings bearing claim number CO/7862/2012, the decision of 18 May 2012 is quashed; (3) no order for costs in either proceedings.
Judge Gore: Mr Bartosik, you handed me these original documents, which I should return to you for safekeeping, and you also handed me a copy of that selection from the 2002 Act which I return to you, but otherwise the papers that we have will remain on the court file. Anything else, gentlemen? Yes, Mr Bartosik?
Mr Bartosik: I would like to apply for permission to appeal.
Judge Gore: Permission to appeal what?
Mr Bartosik: The first application.
Judge Gore: The refusal to restore.
Mr Bartosik: Yes.
Judge Gore: The application for permission to appeal against paragraph 1 of this order is refused. The reason why I refuse it is that the question of whether or not to permit an application to restore is a matter of case management, exercise of discretion. I have not had identified to me any error of law in the approach that I have adopted in that regard and, insofar as the exercise of discretion is concerned, in my judgment there was ample and sufficient material for me to arrive at the decision that I have arrived at such that in my judgment there is no real prospect of success in relation to the appeal and permission to appeal is refused. Mr Bartosik, I am required in those circumstances to reflect that in a form. I will go to my chambers and prepare that form now, so that you shall have it before you leave this building, but it will take me a few minutes to prepare it. Do you understand?
Mr Bartosik: Yes.
Judge Gore: May I have the court file back, so that I have the necessary references for the purpose of completing the relevant form? Thank you very much. Are there any other matters?
Mr Bartosik: I would like to apply for permission to appeal in the second case and I ask that the matter be (inaudible) error of law.
His Honour Judge Gore: What error of law do you submit I have made?
Mr Bartosik: I cannot say at the moment. I apply and once I receive advice from a proper person I will submit it.
His Honour Judge Gore: Well, your application is refused, Mr Bartosik. So far as the second application is concerned, no error of law is identified to me that entitles you to the complaint being determined by a particular decision maker in a particular office and therefore there is in my judgment no real prospect of success concerning paragraph 2 of the order that I have made.
As regards the question of costs, that is again a question of my case management discretion. There was in my judgment ample material upon which I was entitled to make the decision as to costs that I did. There is therefore in relation to that costs matter no real prospect of success and the application for permission to appeal is refused. Again, I will prepare the necessary paperwork in the next few minutes. Anything else, gentlemen?
Mr James: No, thank you, my Lord.
