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R (On the application of) Colin Mantle [2008] EWHC 2831 (Admin)

Application for permission for judicial review of assessment by the CSA and related liability order. Application refused.

The claimant was seeking to overturn a revised assessment which had been the subject of an appeal. He made various unsuccessful applications to appeal the decision of the Appeal Tribunal and the Child Support Commissioner before making this application for judicial review.

In the judgment King J dismisses the various strands of the application swiftly as either out of time or because the Commissioner’s decisions were clear and well reasoned. However she also makes further comments concerning the correct route of appeal and when exceptional circumstances might allow an application for judicial review rather than to the Commissioner. She found that such a route can only be correct where there are “what used to be called errors of law going to jurisdiction” or “where there has been a clear breach of natural justice”. It was quite clear that this case did not come into that exceptional category.  

Neutral Citation Number: [2008] EWHC 2831 (Admin)
Royal Courts of Justice
London WC2A 2LL

Monday, 30th June 2008
B e f o r e:




Computer Aided Transcript of the Palantype Notes of 
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The Claimant appeared on his own behalf
Mr Matthew Purchase (instructed by the Department for Work and Pensions, New Court, 48 Carey Street, London WC2A 2LS) appeared on behalf of the Defendant
(As approved by the Court)
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1. MR JUSTICE KING:  This is an application for permission to apply for judicial review following its refusal on paper by the single judge.  The claimant is a litigant in person.  I have read everything which he has laid before me and listened to everything he very courteously said to me.

2. On the face of his judicial review claim form, the decision the claimant seeks to judicially review is described as a liability order made by the Wellingborough Magistrates' Court of 17th October 2007.  This claim form was issued on 17th January 2008.  The underlying complaint of the claimant however is not the liability order, which was in respect of child support payments, but in fact goes to earlier decisions made as regards the assessment which underlies the Magistrates' Court's liability order.

3. On 9th May 2006 an Appeal Tribunal allowed the appeal of Miss Dawson against an assessment which had been made against the claimant.  A full statement of reasons was ultimately given on 7th January 2007.  In between those two dates, on 8th June 2006 the claimant had written to the Appeal Tribunal saying he could not accept the Appeal Tribunal's recalculation of maintenance.  On 18th July 2006 the Appeal Tribunal had written to the claimant asking the claimant whether he wished his letter to be treated as an application to appeal, in which case full reasons would need to be provided.  On 31st July 2006 the claimant wrote to the Appeal Tribunal confirming he wished his letter to be treated as an appeal, and hence, as I have indicated, on 7th January 2007 the Appeal Tribunal gave a full statement of reasons.  It was issued formally on 9th January 2007.

4. On 7th February 2007 the claimant wrote a response to the statement of reasons.  It was in fact an attempt by the claimant to appeal what the Appeal Tribunal had concluded.

5. On 2nd March 2007 a very important letter was written.  It was written by the Appeal Tribunal to the claimant, in which it first rejected the claimant's application to appeal, but made clear that if the claimant wished to continue with his application (that is for permission to appeal the Appeal Tribunal's decision of 9th May 2006) then:

"... you can apply directly to the Commissioner's Office.  You must make the application on form OSSC1, within one month of the date of this letter.  I enclose a form OSSC1."

6. Unfortunately, the claimant did not apply within one month to the Commissioner.  He did apply, but he applied out of time.  The application was received by the Commissioner's office on 20th July 2007, although it was signed on 3rd May 2007.

7. There is within my bundle of papers a written decision of the Commissioner of 21st August 2007 in which he refuses the claimant's application for leave to appeal.  The opening line is:

"I reject this application because it is made late and there are no special reasons to accept it late."

8. It sets out reasons in a number of paragraphs, but at paragraph 5 says:

"5.  I see no special reasons for allowing in a late application in this case.  In taking that view I note the delay by the applicant as detailed above.  I also take into account the grounds of appeal he wishes to take against the decision of the tribunal."

9. The claimant applied further to the Commissioner, seeking in effect to set aside the Commissioner's refusal of leave to appeal.  The Child Support Commissioner, by a written decision of 16th October 2007, rejected that application set out in five numbered paragraphs.  In paragraph 3 he states:

"3.  On 28 09 2007 the Commissioners' Office received an application to appeal against that determination [that is the refusal of leave to appeal].  As was explained in the letter sent to the applicant with my determination, there is no right of appeal against a determination refusing permission to appeal.  I have instead considered that letter as an application to set aside my decision.  That procedure was also explained in the letter.

4.  The letter from the applicant raises no point relevant either to the power to set aside a determination or to my determination that the application was out of time.

5.  I therefore decline to set aside my determination that the application was out of time and that there are no special reasons to accept it late."

10. I now come to consider this present application for permission to apply for judicial review.

11. As regards the liability order of the Magistrates' Court, permission was refused on paper on very straightforward grounds, namely that the prescribed remedy against the liability order is by way of an appeal and not by an application for judicial review.  This must be right.  In any event, there are no arguable grounds put forward in the papers for any challenge to the magistrates' liability order, since they were bound by the underlying assessment.

12. I then turn to the challenge in effect to the Commissioner's decisions.  Again, there are no arguable grounds for judicially reviewing the Commissioner's decisions.  They were rationally reached and there is no basis, in my judgment, for any argument that the Commissioner has in any way acted unlawfully, unreasonably or perversely.  If I go further back in the history to the decision of the Appeal Tribunal, in so far as the Appeal Tribunal's decision allowing the appeal of Miss Dawson is under attack, then again judicial review cannot lie to this court.  First, any such judicial review is way out of time and there is no reason to extend time.  But, secondly, it would not be by way of judicial review whereby one would challenge that decision, it would be by appeal to the Commissioner.  Again, I have already explained how the appeal route to the Commissioner has been exhausted.

13. I ought to say that I have had drawn to my attention by counsel for the defendant to the line of authority in the Court of Appeal of which R (Strickson) v Preston County Court [2007] EWCA Civ 1132 is one of the latest authorities.  In these authorities the Court of Appeal has considered the residual jurisdiction of this court to allow judicial review of a decision of a county court refusing permission to appeal to itself from a tribunal lower than the county court judge.  By analogy, the same jurisdiction is available in respect of a decision of a Commissioner in this instance.  But that residual jurisdiction of this court is very narrowly confined.  It is confined to what used to be called errors of law going to jurisdiction in the pre Anisminic sense (Anisminic being a decision of the House of Lords which is a landmark decision in the development of judicial review) or where there has been a clear breach of natural justice.

14. In the authority to which I was referred, Laws LJ at paragraph 32 said this:

"I think a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both), and a case where, as I would venture to put it, the judicial process itself has been frustrated or corrupted.  This, I think, marks the truly exceptional case."

It is quite clear in my judgment that the claimant in the present case cannot bring himself within this exceptional basis for seeking judicial review of the Commissioner.

15. I ought also to say that another hurdle in front of this application is the fact that it is late as regards permission to apply for judicial review of the Commissioner's decisions.  Taking the most generous view, the most recent decision which might be attacked is that of 16th October 2007 and the claim form is out of time.

16. I can see no reason for granting an extension of time, but I do want to make clear to the claimant that even if he had been within time, there are just no grounds put forward by which judicial review can be sought of these various decisions.  This application is refused.