Case No: CO/3169/2001
Neutral Citation Number: [2001] EWHC Admin 1078
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

St Albans Crown Court
The Court Building
St Albans
AL1 3JW

Date:13th December 2001

Before:

THE HONOURABLE MR JUSTICE HOOPER

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The Queen on the application of Kevin Mahon		Claimant

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Taunton County Court	  	          Defendant

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr Kevin Mahon appeared in person

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Judgment

Mr Justice Hooper:

1.	This is an application for permission to apply for judicial review of a decision made on 10 May 2001 by His Honour Judge Cotterrill sitting at the Taunton County Court to refuse the claimant permission to appeal a decision of District Judge Smith given on 23 March 2001.  The learned judge also ordered the claimant to pay £250.00 costs to Yeovil Town Council.  The defendant, Taunton County Court, did not appear.   
2.	In his original judicial review claim form the claimant listed 4 defendants: Yeovil Town Council, South Somerset District Council, Chief Constable Avon and Somerset Constabulary and Justices Chief Executive Bridgewater Magistrates Court.  The Administrative Court Office having noted that the challenged decision was that of the Taunton County Court suggested that the claimant amend his claim form to show as the defendant that Court.  He did so.   The four original defendants are now interested parties.  None attended the hearing.  I have however been helped by solicitors for Yeovil Town Council who provided the Court with a proper bundle of documents. 
3.	Under the heading “Detailed Statement of Grounds”, the claimant wrote:
“1.  The County Court had no jurisdiction over the matters adjudicated upon Data Protection Act 1998 sections 15 and 49
2.  A section 10 notice under the Data Protection Act 1998 had been issued to the defendants and, therefore, there is no consent in this case.
3.  The matters adjudicated upon were proper to the Data Protection Commissioner.
4.  Supreme Court Act 1981 section 29.”
4.	The background to the case is set out in the Acknowledgement of Service by Yeovil Town Council and South Somerset District Council:
“1.  In May 2000 the Claimant made application to Yeovil Town Council (the delegated authority) for a Hackney Carriage Driver’s Licence - completing the appropriate application form and tendering the requisite fee.
2.  Yeovil Town Council introduced the application for the licence in terms “this holder of a Hackney Carriage Driver’s Licence is in a position of public responsibility and trust.  The Council in deciding licence applications must satisfy itself that such applicants are fit and proper persons to hold driver licenses.”  In addition, the Claimant signed a declaration on his licence application form dated 22nd May 2000 “I declare that the above particulars are truly stated and I have no objection to the Council consulting the Police, my prospective/current/previous employers and any other authority regarding this application.  I also undertake to comply with the conditions attached to any licence granted.
3.  At a hearing of the Yeovil Town Council Planning Committee on 17 July 2000 the Claimant was heard in support of his application for a Hackney Carriage Driver’s Licence and failed to satisfy the Committee that he was such a fit and proper person.
4.  The Claimant appealed that decision and was heard before the South Somerset Magistrates Court in September 2000 - and failed the second time.
5.  On 16 March 2001 the Claimant’s appeal from that decision was heard in the Taunton Crown Court before Recorder Meeke QC and also failed.
6.  The Claimant wishes to appeal a third time from that decision, but from correspondence received it would appear that the Claimant is unable to approve the case as stated by the learned Recorder.
7.  During the course of the appeal to the Taunton Crown Court, the Claimant issued some 16 sets of proceedings - in pairs for injunctions and damages - the four Defendants mentioned in this application being the target of an application for an injunction and damages apiece, arising out of the Hackney Carriage Licence case.
8.  From the papers it would appear that District Judge Smith in the Yeovil County Court required further and better particulars of the claim to be given before they were issued and served.  In due course this group of actions came before District Judge Smith for hearing on 13 March 2001.  After a lengthy and courteous hearing in which the District Judge concentrated upon the Claimant’s points, the Claimant was unsuccessful and the Judge gave a lengthy reserved judgment on 23 March.
9.  In short a) the Claimant’s claims were struck out against all Defendants and b) the Claimant was ordered to pay the Defendants’ costs to be determined by detailed assessment.  The Judgment dated 23 March 2001 and the Order is dated 29 March 2001.
10.  Thereafter the Claimant made applications for permission to appeal and these were considered in the Taunton Crown Court by His Honour Judge Malcolm Cotterill - on paper on 24 April 2001 when the learned Judge concluded that permission to appeal is refused on the grounds that the application discloses no sufficient purposes for an appeal and in consequence no prospect of success if an appeal of any one of them were pursued.
11.  The Claimant then sought to appear before the learned Judge in person when his oral application for permission to appeal was further declined by Judge Cotterill in open Court.”
5.	The claimant having made the declaration on the licence application, the Council made enquiries.  In his judgment in the Yeovil County Court striking out the claimant’s claims against the four defendants District Judge Smith stated:
“The council has a statutory obligation to satisfy itself that an applicant for such a [Hackney Carriage] licence is a fit and proper person and not to grant one to one who is not ...  The council made enquiries of the Chief Constable Avon & Somerset Police (‘the police’).  The applicant had disclosed in his application form a conviction in 1995 for 2 counts of False Accounting.  The police provided some information.  Whether it was any more extensive that what the claimant had already disclosed, I do not know.  In addition, the council wrote an unsolicited letter to the magistrates clerk on 22nd June 2000 confirming that the claimant had been convicted on 15th December 1992 in respect of 15 offences relating to acting as an unlicensed hackney carriage driver, plying for trade while unlicensed and overcharging.”
6.	In the next paragraph District Judge Smith summarised the decision of the Council:
“The Council refused the application at the conclusion of the meeting.  In a letter of 18th July 2000 the council said ‘Given the number, nature and relevancy of your unspent convictions the council is not satisfied that you are a fit and proper person to hold a Hackney Carriage licence.’”
7.	The claimant then appealed unsuccessfully to the South Somerset Justices and at the time District Judge Smith gave his judgment on 23 March 2001 the appeal to the Taunton Crown Court (ultimately unsuccessful) was pending.  The thrust of the claim is summarised by the District Judge in the following way:
“The claimant has issued separate proceedings in this court against the four defendants named above.  In some of the cases, the Claim form disclosed no proper cause of action and he was ordered to, and did, file a proper claim.  He has purported to file further amendments in some of the cases but they add nothing material, save that by a purported amendment filed yesterday in the claim against the police, he now claims a total of £170,001 (sic) under various heads.
The essence of the claimant’s claim is that the police had no right to disclose the information to the council or magistrates or, insofar as the information was passed by the council to the magistrates, there was no right to transmit the information, and that, in either case, there was no right in the council or the magistrates to use the information divulged.  He says that the council, magistrates and police have in effect conspired to deprive him of a licence.”
8.	The District Judge set out the various grounds upon which the claimant relied to establish the proposition that the information had been unlawfully disclosed.  Amongst other things the claimant relied upon section 113 of the Police Act 1997 and the Data Protection Act 1998, as well as the Human Rights Act.  The learned Judge considered all the grounds in some detail and reached the conclusion that there was no merit in them.  He struck out all the claims.
9.	The claimant told me that shortly before the hearing before District Judge Smith the claimant became aware, as a result of material served on him by the police, of the provisions of the Data Protection Act.  The thrust of the argument developed before me was that on 17 February 2001 he had served on various parties a notice under section 10 of the Data Protection Act 1998, which came into force on 1 March 2000.  The claimant  was unable to produce that notice to me and I asked him to send it to me.  The 17 February document (one amongst a number of documents) which he subsequently sent does not refer to the Data Protection Act.  The paragraph from that document upon which the claimant relies reads as follows:
“Any signature, on any piece of paper, obtained from me by Yeovil Town Council and South Somerset District Council has been obtained by deception.  Any Council Officer, Councillor or legal representative employed by these Councils who claims to have my consent to obtain information about me from the Chief Constable of Avon and Somerset or Mrs Gagg, the Deputy Clerk to the Justices, is hereby notified that my consent is withdrawn and revoked without equivocation and qualification.  Any Council Officer, Councillor or legal representative employed by these Councils who claims to have my consent to present this information to the Crown Court or High Court is hereby notified that my consent is withdrawn and revoked without equivocation and qualification.  Any Council Officer, Councillor or legal representative employed by these Councils who claims to have my consent to publish this information to any third party including newspapers is hereby notified that my consent is withdrawn and revoked without equivocation and qualification.  I hereby order that any Council Officer, Councillor or legal representative employed by these Councils is to destroy any information that has been acquired from the Chief Constable of Avon and Somerset and Mrs Gagg, the Deputy Clerk to the Justices, to be destroyed forthwith.”
10.	At the hearing before me the claimant did produce a notice purporting to be made under section 10, dated 1 November 2001.  That notice came into existence after the claimant had sought an order requiring “the Data Controller” to comply with what he claimed was an earlier notice (see section 10(4)).   I presume that was the “notice” dated 17 February.  The claimant told me that the judge, who heard the application for that order on 1 November, told him that the notice which he had previously served was “opaque”.  The claimant sought to challenge that conclusion. I pointed out to him that this application is only concerned with a  decision of the Taunton County Court made on 10 May 2001.  
11.	I turn now to the application for permission to review that decision. 
12.	By virtue of section 54(4) of the Access to Justice Act 1999 it is clear that no appeal may be made against the decision of His Honour Judge Cotterill refusing permission to appeal.  This sub-section provides:
“No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court).”
13.	In Clark (Inspector of Taxes) v Perks and other applications [2000] 4 All ER, at 6  (CA)  Brooke LJ giving the judgment of the Court said of this sub-section(paragraph 20):
 “These words mean what they say.”  
14.	He continued:
“… the jurisdiction of the Court of Appeal being wholly statutory, the Court has no inherent jurisdiction to hear an appeal against such a decision (unless it can be truly said that there was no decision at all)” …  On the other hand, if on such an occasion, the appeal court makes a further order, such as a costs order or an order refusing an adjournment, an appeal does in theory lie to this court, with permission, although it is likely to be a very rare case in which such permission would be granted.”
15.	In my judgment the legislative purpose of this sub-section would be subverted if a party to civil proceedings who has been refused permission to appeal by the County Court could then apply to this Court to have the decision quashed on public law grounds. It must follow that this Court should, subject to one or two possible exceptions to which I turn shortly, refuse to entertain any application for judicial review where the basis of the claimant’s case is that a judge in the County Court reached a wrong conclusion of law or fact in refusing permission to appeal.
16.	I note that in the Manual of Civil Appeals (General Editor, David di Mambro, published by Butterworths in 2000) can be found the following (para 3.11 at page 32):
“The High Court has jurisdiction to review decisions of the County Court by way of mandamus, certiorari and prohibition, which jurisdiction is recognised by statute [County Courts Act 1984 sections 83 and 84] however, it is unlikely that the High Court would give permission to proceed to judicial review of a Circuit Judge’s refusal to give permission to appeal from a District Judge’s decision, as to do so would have the effect of circumventing the provisions of section 54(4) of the Access to Justice Act 1999.”
17.	The claimant seeks to argue that His Honour Judge Cotterrill had no jurisdiction to entertain the appeal and that therefore this court does have the power to set aside the refusal.   In paragraph 16 of a letter dated 31 August 2001 to the Administrative Court Office he wrote:
“Knowing that I had the right to enforce my section 10 notice in the High Court I consulted a book entitled County Court Practice 1998 where lo and behold it stated quite clearly that where a County Court Judge had no jurisdiction in a case it could be removed into the High Court for a Judicial Review for an order of Certiorari the authority for this is the Supreme Court Act 1981 section 29 and they even had a reference to case law.”
18.	The Administrative Court Office drew my attention to a decision of Longmore J in The Queen on the application of Barbara Foley v Birmingham City Council (unreported Thursday 14th December 2000).  In that case Mr Justice Longmore quashed a decision recorded in a consent order of a Judge at the Birmingham County Court.  It was successfully submitted by Mr Latham, counsel for Barbara Foley, that the consent order had been made without jurisdiction,  the condition precedent for the making of such an order not having been satisfied.  Neither the Court Service or Birmingham County Council appeared at the hearing.  In a written submission the Lord Chancellor’s Department took the point that the matter should proceed by way of appeal rather than by way of judicial review.  As to that argument Longmore J said:
“I am satisfied, on the authorities that Mr Latham has put before me, that either way of proceeding is acceptable if it is the case that the Judge has acted without jurisdiction.”
Longmore J referred to a decision of the Court of Appeal in R v Bloomsbury and Marylebone County Court ex parte Blackburn 14 HLR 56 and R v Newcastle upon Tyne County Court ex parte Thompson (1988) 20 HLR 430.  In both cases an application for judicial review in circumstances similar to those with which Longmore J was concerned succeeded.  
19.	In R v H.H. Judge Sir Donald Hurst, ex parte Smith [1960] 2 All ER 385 (Div. Ct.), a decision of a county court judge on an appeal from a decision of an electoral registration officer under s 45(1)(c) of the Representation of the People Act, 1949 was quashed on an application for judicial review.  The Court held, in the words of the headnote:
“The county court judge had no jurisdiction to give the directions of 12 February 1960, because (a) neither the applicant nor the other eighty-nine members of the college were parties to the appeal, and (b) the procedure prescribed by CCR, Ord 43, r 8 (eg, by the selection of one appeal), had not been followed; accordingly the directions would be quashed, and an order of mandamus would issue to the electoral registration officer to insert the applicant’s name in the register.”
20.	The note to that case in the All England Reports refers to an earlier decision of the Divisional Court, R v His Honour Judge Sir Shirley Worthington-Evans, Clerkenwell County Court, Ex parte Madan and Another [1959] 2 All ER 457.  Donovan J giving the judgment of the Court said (at 459):
“I am satisfied that in a proper case this court has power by order of certiorari to bring up and quash the order of the county court judge made without jurisdiction in that behalf (see Kemp v Balne (1844), 1 Dow & L 885; and Colonial Bank of Australasia v Willan (1874), LR 5 PC 417 at pp 442 and 450).”
21.	In R. v. Keighley County Court, ex parte Home Insulation Ltd [1989] C.O.D. 174 Roch J. quashed a decision of His Honour Judge Pickles who had refused to transfer to another County Court judge an application made to him to set aside an arbitration award which he, His Honour Judge Pickles, had earlier made.  He had refused to do so in the belief (wrongful as the Court held) that a County Court judge had no jurisdiction to overturn an arbitration award made by another County Court judge. The Court held, in the words of the summary:
“(4)  In the circumstances His Honour Judge Pickles should not have heard an application to set aside his own arbitration award since for justice to be done and be seen to be done fairly it was necessary to have a hearing before a judge who came to the matter with a fresh mind.  In this case His Honour Judge Pickles only sat because he believed that the application depended solely on jurisdiction.”
22.	This case may be seen as within the category of cases to which I have referred.  It may also suggest that this Court has jurisdiction if the challenge is to the fairness of the proceedings.   I do not need to decide that. 
23.	On the authorities  this court has power by way of judicial review to quash the order of a county court judge if made without jurisdiction or perhaps if the claimant did not receive a fair hearing.  As the law now stands, neither lack of jurisdiction or a failure to give a person a fair hearing when the application for permission is considered, would permit an unsuccessful applicant for permission to appeal to seek permission from the Court of Appeal.  Judicial review could thus fill the gap.
24.	It follows that only in exceptional cases could an application for judicial review of the decision of a county court judge to refuse permission to appeal succeed where there is no appeal by virtue of section 54(4) of the Access to Justice Act 1999. 
25.	I should add that if an appeal to a higher court is available to the claimant, then, even when there is an allegation of lack or jurisdiction or that the hearing was not fair,  this Court may well to-day be reluctant to interfere, leaving the claimant to his appellate remedy.  The normal procedure in this Court is not very satisfactory for resolving issues of disputed fact. 
26.	Is the claimant right when he submits that His Honour Judge Cotterill had no jurisdiction because of the notice dated 17 February 2001.   In my judgment the submission is unarguable for a number of reasons.
27.	First, the enquiries about the claimant’s history were made well before the letter of 17 February.
28.	Secondly, the letter of 17 February cannot be construed as a notice under section 10 of the Data Protection Act 1998.
29.	Thirdly, section 10 does not have the effect contended for by the claimant.  It provides:
“(1)  Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons-
(a) the processing of those data or their processing for that purpose or in that manner causing or is likely to cause substantial damage or substantial distress to him or another, and
(b) that damage or distress is or would be unwarranted.
(2)  Subsection (1) does not apply-
(a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or
(b) in such other cases as may be prescribed by the Secretary of State by order.
(3)  The data controller must within twenty-one days of receiving a notice under subsection (1) (“the data subject notice”) give the individual who gave it a written notice-
(a) stating that he has complied or intends to comply with the data subject notice, or
(a) stating his reasons for regarding the data subject notice as to any extent unjustified the extent (if any) to which he has complied or intends to comply with it.
(4)  If a court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent), that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.
(5)  The failure by a data subject to exercise the right conferred by subsection (1) or section 11(1) does not affect any other right conferred on him by this Part.”
30.	The section has no application for a number of reasons. These include the following. The events with which the claimant’s case is concerned are not retroactively affected by any later notice.  The judge hearing the application for permission to appeal is not a data controller.  The notice does not itself render any processing of the data unlawful, whereas any order under subsection 4 may do so.  Sub-section (1) does not apply by virtue of Schedule 2 if:
“The data subject has given his consent to the processing”.
The claimant had given his consent at the time of any processing.  It also does not apply if the processing is necessary for the exercise of various functions of a public nature. 
31.	For these reasons this application fails.  
32.	The defendant has made a written application for costs in the sum of £1800.14.  It is unusual to make a costs order in favour of a defendant following an unsuccessful application for permission to apply for judicial review,  unless, at least, the application is renewed after refusal on paper.  I refuse that application other than that part of the application which relates to a claim for the costs of preparing the bundle for the hearing.  Given the costs which the claimant will incur in travelling, I am prepared to consider that part of the application on paper and invite the claimant to make his representations, copies of which he should send to the Administrative Court Office and to Porter Dodson, solicitors for Yeovil Town Council.   Should the claimant wish an oral hearing on this matter, he should so inform the Administrative Court and the hearing will take place on January 11, 2002 at 2.00 p.m. in the Royal Courts of Justice.  The defendant need not attend.  
33.	This case and another case were listed before me because the Administrative Court Office  have been receiving a number of applications for judicial review in circumstances where a claimant is seeking a judicial review of a decision of a county court judge to refuse permission to appeal on the grounds that the judge was wrong to refuse that permission.  Other than in the exceptional circumstances to which I have referred, judicial review is not a remedy open to unsuccessful applicants who are prevented from appealing to a higher court by virtue of section 54(4) of the Access to Justice Act 1999.