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Neutral Citation No. [2013]
NIQB 18
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Ref:
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McCL8768
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Ex
Tempore Judgment: approved by the Court for handing down
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Delivered:07/01/13
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(subject to editorial
corrections)*
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IN THE HIGH COURT OF
JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH
DIVISION
McCann’s (Colin)
Application [2013] NIQB 18
________
AN APPLICATION BY
COLIN McCANN FOR LEAVE TO APPLY FOR JUDICIAL REVIEW
_______
McCLOSKEY J
[1] This
is an application for permission to apply for judicial review. The application
is brought by Colin McCann. The application has been presented on
Mr McCann’s behalf by a family relative. Being an application for
permission to apply for judicial review the normal procedure has been
observed. This means that the proposed respondent and an interested party have
been notified of today’s hearing and have attended. The proposed respondent is
the Tribunal itself. The interested party is the respondent to the Tribunal
proceedings. In the event the court has not considered it necessary or appropriate
to invite any argument from the representatives of either of those two
parties.
[2] I
shall deal firstly with the function of the High Court in litigation of this
kind. The High Court exercises a supervisory jurisdiction over the acts of
public authorities and those of inferior courts and tribunals. These include Industrial
Tribunals and Fair Employment Tribunals. The jurisdiction of the High Court is
supervisory and not appellate. One aspect of this principle is that the High
Court is a forum of last resort in cases of its kind. Another well-established
general principle is that the High Court does not micromanage the proceedings
of inferior courts and tribunals, nor does the High Court, other than
exceptionally, review the merits of procedural rulings or decisions of inferior
courts and tribunals. The High Court, furthermore, does not entertain
challenges which are properly described as satellite in nature.
[3] As
a strong general rule the fairness of any court or tribunal procedure or hearing
is to be reviewed retrospectively and not prospectively. See Re Officers C
and Others [2013] NICA 47 and compare Ali v BCH Trust [2008] NIQB 14, paragraphs [64] – [65]. Exceptions to this rule are limited in
nature. For example, if it were demonstrated in advance that an inferior court
or tribunal by virtue of its constitution would inevitably contravene the rule
against actual bias viz the prohibition on having an interest in the outcome,
then the High Court would be expected to intervene. Similarly, if it were
demonstrated in advance that the rule against apparent bias, which is a
different kind of contamination, would be offended if the proceedings were to
continue without some alteration in the constitution of the inferior court or
tribunal then in that circumstance also the High Court would also be expected
to intervene. Those are two clear exceptions to the firm general rule which I
have articulated. While there may be others it is idle to reflect on them at
present. For the avoidance of any doubt I conclude that neither of those
exceptions has been canvassed or applies in the present case.
[4] The
Applicant’s challenge is diffuse and requires to be interpreted and dismantled
to the best of the court’s ability. It seems to have two basic limbs. The
first is of a structural, or constitutional, character. Insofar as there is a
challenge to what will or may be the constitution of the Tribunal scheduled to
hear these conjoined cases beginning on 7th January 2013 I find that there is
no semblance of an arguable case. This limb of the challenge is conspicuously
empty, infused with bare assertion and pure speculation.
[5] The
second dimension of the Applicant’s challenge is one which focuses exclusively on
issues of fairness. In this context, this is fairness of the procedural and
not the substantive variety. In developing this challenge a series of issues
has been canvassed or highlighted on the Applicant’s behalf. These, mainly
though inexhaustively, relate to unsuccessful attempts to have case management
discussions convened and similarly frustrated efforts to secure a pre-hearing
review. Such efforts have entailed written representations to the Tribunal
canvassing, inter alia, questions concerning who might chair the
hearing; whether the Chairman will or will not have certain qualifications or
expertise; previous descriptions of the Applicant choosing not to attend to
give evidence; addresses to which correspondence has been directed; a
disagreement with a description of written representations as unfocused; the
content of an interim ruling; the length and depth of the same ruling; the
service of bundles for the hearing; the composition of bundles; a history of
unsuccessful strike out applications by the Tribunal proceedings respondent; issues
bearing on who are the parties to the Tribunal proceedings and who is or are
the remaining parties; what evidence will be adduced by the Respondent; who
the Respondent’s witnesses will be; what will be the issues to be determined by
the Tribunal; the adequacy of discovery of documents; the adequacy of the
remedy of case stated at the end of the Tribunal proceedings; and the extent to
which the adversarial process will impact on the hearing. The majority of
these issues which have been canvassed on the applicant’s behalf relate to the
procedural fairness of a hearing which has not yet taken place, while the
others concern the first limb of which I have disposed already. None of them gives
rise to any arguable case of illegality or procedural unfairness or
impropriety. Rather they are all embraced by the prohibition against
inappropriate satellite litigation and the potent general principle that the
High Court does not exercise its supervisory jurisdiction so as to micromanage
the proceedings of inferior courts or tribunals or to superintend purely
procedural and interlocutory rulings. It is worth repeating: advance
intervention by the High Court in the proceedings of an inferior court or
tribunal will very rarely be appropriate.
[6] The
misconceived nature of this challenge is exposed and reinforced by the
description given by the Applicant’s
representative to the remedy which is sought in this court. This description
was twofold. Firstly, it was suggested that the Tribunal proceedings should be
transferred to the High Court and heard here. This is constitutionally
impermissible because the Tribunal is the only forum empowered by statute to
determine these cases. Secondly, it was suggested in terms that this court
should make an order - presumably an order of mandamus - directing the Tribunal
to constitute itself in a particular way. There are no grounds upon which it is
arguable that an order of this kind should be made.
[7] For
these reasons the application is misconceived and only one outcome is possible,
namely a refusal of permission to apply for judicial review. It follows, of
course, from the court’s reasoning and conclusion that if the Applicant wishes
to ventilate issues of the fairness of the proceedings before the Tribunal then,
in the exercise of every litigant’s right to a fair hearing, the Tribunal will
doubtless grant this facility. It will also give careful consideration to the
stage at which they should be considered - for example, before the hearing
begins if there is an issue of an adjournment - and how they should be managed.
These are all questions which lie within the exclusive competence and
responsibility of the Tribunal itself.
[8] Permission
to apply for judicial review is refused accordingly.
