FRI -v- Family Court at Birmingham (anonymity order and application for judicial review)
Administrative CourtHigh CourtKing's Bench DivisionAnonymity OrderJudgment
CO Ref: CO/2398/2022
In the High Court of Justice
King’s Bench Division
27 December 2022
The Honourable Mrs Justice Steyn DBE
In the matter of an application for judicial review
on the application of
Family Court at Birmingham
LRF (interested party)
Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the Claimant
ORDER by the Honourable Mrs Justice Steyn DBE
- The application for permission to apply for judicial review is refused.
- Pursuant to CPR 39.2(4), no person shall publish the name, address or any information capable of identifying the Claimant or the Interested Party. In these proceedings, the Claimant and the Interested Party shall be referred to, respectively, as ‘FRI’ and ‘LRF’; and the claim shall be known as ‘R (FRI) v Family Court at Birmingham’.
- The Claimant’s application for permission to disclose the court file to unidentified third parties is refused.
- No order for costs.
- I am satisfied that it is necessary to grant an anonymity order, having regard to articles 8 and 10 of the European Convention on Human Rights. This claim concerns decisions made in the Family Court in proceedings between the Claimant and his (former) wife, the Interested Party. It also concerns allegations by the Claimant that the Interested Party disclosed his (putative) sexual orientation. In my judgment, the privacy interests engaged outweigh the interests of open justice in knowing the identity of these parties to the claim.
- By a claim filed on 29 June 2022, the Claimant seeks permission to apply for judicial review of:
a. the decision of District Judge Malek, sitting in the Family Court at Birmingham, on 24 July 2020 making a without notice Non-Molestation Order (‘the NMO’); and
b. the decision dated 30 March 2022 of Her Honour Judge Carter dated 30 March 2022, sitting in the Family Court at Birmingham, to refuse permission to appeal against a costs order made by Deputy District Judge Jones on 1 July 2021 (HHJ Carter’s decision); and not to permit the Claimant to address the court on human rights issues surrounding the application for the NMO.
- The NMO was made on 24 July 2020 on a without notice application of the Interested Party. The NMO provided for a return date in the form of a paper hearing on 8 October 2020 (due to the Covid-19 pandemic), and also expressly permitted the Claimant to make an application to set aside or vary the NMO. The Claimant made an application to set aside the NMO and he also made a cross-application for a non-molestation order against the Interested Party.
- Those applications were dealt with by consent at a telephone hearing on 2 September 2020 before DDJ Jones, at which the parties agreed to give and accept cross-undertakings in the same terms. and to the discharge of the NMO. On the Claimant indicating his intention to apply for costs, and being warned of the risk of a costs order being made against him, costs were reserved.
- Although in the claim form the Claimant identifies the date of the decision challenged as 30 March 2022, he also identifies as the first decision he challenges, the “[f] ailure to provide reasons for making the Order dated 25 July 2020” (claim form, 3.1); and in his grounds he alleges that the making and maintaining of the NMO breached his rights under Articles 9 and 6, and Article 14 in conjunction with Articles 6, 8 and 9 of the European Convention on Human Rights.
- A claim for judicial review “must be filed (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose”: CPR 54.5. The challenge in respect of the NMO has not been filed within the ‘longstop’ period of 3 months. Far from it: it has been filed more than 1 year and 8 months after the NMO was made. The Claimant has not made an application for an extension of time, or identified any good reason why such a lengthy extension should be granted. I refuse permission in respect of the challenge to the NMO on the grounds that the claim has been filed out of time.
- Secondly, the challenge to the NMO is also academic given that the NMO was discharged by agreement on 2 September 2020.
HHJ Carter’s decision
- It is apparent from the papers that have been filed by the Claimant that his application for costs was initially due to be determined on the papers on 8 October 2020, but it was adjourned on 28 September 2020 to a telephone hearing on 11 November 2020. At that hearing further directions were given for the hearing to be re-listed with a longer time estimate on 1 July 2021 before DDJ Jones. On 8 June 2021 DDJ Jones made further directions in relation to the 1 July hearing. The order makes clear that the sole matters for determination on 1 July 2021 were the Claimant’s application, and a cross-application by the Interested Party, for costs arising from the parties’ application for non-molestation orders; and any application by the Claimant for further orders for contempt, wasted costs orders or otherwise should be made by a formal application.
- No copy of the order made by DDJ Jones has been included in the Claimant’s bundle. Nor is there a copy of any reasons DDJ Jones may have given, or of the skeleton arguments that the parties provided in support of and in response to their respective costs applications. In the claim form, the Claimant states that DDJ Jones “dismissed the costs application”.
- It is apparent from HHJ Carter’s order that permission to appeal was initially refused on the papers and the Claimant sought oral reconsideration. HHJ Carter refused permission to appeal, giving a judgment which again is not before the court.
- The grounds of claim in respect of HHJ Carter’s decision are difficult to discern from the statement of grounds but appear to be, in short:
a. The Interested Party has misled the Defendant, to the extent of committing perjury, and the Defendant has unreasonably failed to acknowledge this or to take any action in response to it.
b. The Defendant by failing to take any action against the Interested Party, and by issuing an order on 2 September 2020 in terms the Claimant alleges are incorrect, has been complicit in a breach of the Claimant’s Convention rights, particularly under Articles 8 and 9. This breach has been occasioned by the publication by the Interested Party of allegations that he is gay, which is particularly damaging to him as a Muslim.
c. DDJ Jones was wrong to fail to take into consideration the human rights implications of the Interested Party’s behaviour, and the actions of her solicitor, when determining his costs application, and HHJ Carter was wrong not to consider this aspect of his application when determining his application for permission to appeal.
- In my judgment, no arguable ground of claim is apparent from the Claimant’s claim form, statement of grounds or the accompanying documents. First, it appears from DDJ Jones order of 8 June 2021 that the only matters determined on 1 July 2021 were any applications for costs arising from the NMO applications. As that order made clear, no formal applications for contempt or wasted costs had been made, and no application in that regard would be considered without a formal application. DDJ Jones made no arguable error in not determining any allegation of perjury or contempt that was not before the court at the hearing on 1 July 2021, and HHJ Carter made no arguable error in refusing permission on the basis of such an alleged failure. This is an answer to grounds (a), (b) and (c). Second, insofar as the Claimant’s allegations concern the alleged incorrect terms of the order of 2 September 2020, the claim is far out of time. Third, in circumstances where the result of the Interested Party’s NMO application was that the Claimant agreed to give undertakings in the terms of the order, and the Interested Party agreed to give cross-undertakings in the same terms, a decision not to award the Claimant his costs is manifestly reasonable, and there is no arguable error in the decision to refuse permission to appeal against it.
- Finally, I note that in Sivasumbramaniam v Wandsworth County Court  EWCA Civ 1738,  1 WLR 475, Lord Phillips MR observed that having regard to the fair, adequate and proportionate protection against the risk that a district judge may have fallen into error that the appeal scheme provided by Parliament provides, judges of the Administrative Court should dismiss judicial review challenges brought against refusals of permission by the county court summarily in the exercise of their discretion, save in those “very rare cases where a litigant challenges the jurisdiction of a circuit judge giving or refusing permission to appeal on the ground of jurisdictional error in the narrow, pre-Anisminic sense, or procedural irregularity of such a kind as to constitute a denial of the applicant’s right to a fair hearing” (-). Although I would in any event refuse permission for the reasons that I have given, I also do so for the additional reason that the Claimant has not grappled with the test applicable in the context of a challenge to a refusal of permission to appeal, and that test is not arguably met on the materials before me.
- I have made no order for costs in circumstances where no acknowledgments of service have been filed.
- I have refused the Claimant’s application for permission to disclose the court file to unidentified third parties. There is no reason to do so, particularly where those parties are unidentified, and it is not clear that the Claimant has the permission of the Family Court to rely on the documents that have been filed in this case.
Signed Mrs Justice Steyn 27 December 2022