Neutral Citation Number:  EWCA Civ 53
IN THE SUPREME COURT OF JUDICATURE C/2001/2326
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(MR JUSTICE STANLEY BURNTON)
Royal Courts of Justice
Friday, 18th January 2002
B e f o r e:
LORD JUSTICE BROOKE
LORD JUSTICE MANCE
THE QUEEN ON THE APPLICATION OF
SURREY COUNTY COUNCIL
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MR M FORDHAM (instructed by Richard Buxton, 40 Clarendon Street, Cambridge, CB1 1JX) appeared on behalf of the applicant
The respondent did not attend and was not represented
J U D G M E N T
(As approved by the Court)
LORD JUSTICE BROOKE: Mr Fordham, in our view this case raises issues which are worthy of consideration by the court on a full appeal. The point raises quite an important issue relating to access to this court in representative public law proceedings where the claim is brought by one person on behalf of herself and others who are involved in the same issue. As it seems to us, this is a matter on which guidance by the Court of Appeal would be helpful. Accordingly, we will direct a three judge court, preferably including two judges with judicial review experience, not including Schiemann LJ, because he refused permission. There has been a considerable delay in this matter already. This is only a preliminary issue relating to the question whether others can be joined as claimants so we would express a request that it can be listed at a conveniently early date. How long, a day?
MR FORDHAM: I certainly do not think it is more than a day. I think it would be safe to say a day.
LORD JUSTICE BROOKE: Best to say a day. Any other directions you would like?
MR FORDHAM: No more directions, no. We are very grateful to your Lordships for pre-reading. I just wonder whether I ought to mention one matter, and it is a practical case management issue, and it is this. As your Lordships know, we have now, including today, had three satellite hearings on this question of whether the substantive issue in the case should run and be considered by a court. Now, obviously, that is a matter for the Council, they have adopted the stance that they have in these proceedings, but it may be that they would regard it as sensible at least to revisit whether they do wish to maintain that position so that we have a fourth satellite hearing on the issue of whether the underlying --
LORD JUSTICE BROOKE: That is very much a matter for the parties. So far as this court is concerned, there is an important issue which the court would be very pleased to give guidance to the profession about, because I have, for a long time, been anxious about these arrangements by which a single individual is selected to bring public law proceedings, usually protected in relation to costs, when there is a group, none of whom have any financial exposure at all, who say "well, we are all interested" and throw up their hands in horror when the original claim falls by the wayside.
MR FORDHAM: I entirely understand that, and of course in particular that is a concern which will arise in a case where there is legal aid. This is not such a case. This is not a case where the named individual claimant had the benefit of a legal aid certificate.
LORD JUSTICE BROOKE: One way or the other, we do not know anything about whatever arrangements may have been made for funding, but it raises a point of general importance, and if the court does have the opportunity of giving guidance it would be nice. If the parties do not want to have any more ancillary litigation, simply a consent order, so far as this case is concerned, that would be nice too.
MR FORDHAM: My Lord, yes. I simply thought it was right to mention it because it may be that the Council would look at the matter in that way --
LORD JUSTICE BROOKE: I do not know if they will or they will not, but that is a matter for them.
MR FORDHAM: Quite so. We are grateful for that. There are no further directions that I would seek.
LORD JUSTICE BROOKE: Very well.