Case No. CO/6284/2008 
Neutral Citation Number: [2009] EWHC 1546 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Wednesday, 1 April 2009

B e f o r e: 

SIR ANTHONY MAY
and
 
MRS JUSTICE DOBBS 
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Between: 
THE QUEEN ON THE APPLICATION OF MURRAY 
Claimant

v 

BIRMINGHAM MAGISTRATES COURT 
Defendant
THE CHIEF CONSTABLE FOR THE WEST MIDLANDS POLICE 
The Interested Party
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr De Mello (instructed by McGrath and 	Company, Birmingham) appeared on behalf of the Claimant 
The Defendant did not appear and was not represented  
Mr O'Brien (instructed by in‑house solicitors) appeared on behalf of the Interested Party 
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J U D G M E N T 

1.	SIR ANTHONY MAY:  Dobbs J will give the first judgment.
2.	MRS JUSTICE DOBBS:  This is an application for permission to apply for judicial review, permission having been refused on the papers on 17 October 2008 by Mr Howell QC sitting as a Deputy High Court Judge.  The claimant seeks permission to challenge the decision of 12 May of District Judge 	Mottram that an accountants' report, prepared for the claimant, and submitted to the Birmingham Crown Court in connection with criminal proceedings which resulted in his conviction for possession with intent to supply cannabis, was admissible in forfeiture proceedings brought by the interested party, the Chief Constable for the West Midlands Police.  
3.	These proceedings were in respect of £87,500 cash seized from the claimant's premises at the time of his arrest.  A number of remedies are sought, including the quashing of the decision, a declaration and stay on the forfeiture proceedings.
The background  
4.	The background to the claim is as follows:  the claimant was arrested for possession of cannabis at his house; £87,500 in cash was found and it was seized.  On 24 November 2002, he was charged with possession of cannabis with intent to supply.  The forensic accountants' report was prepared and filed on behalf of the claimant at the Crown Court on 17 October 2003.  Apparently the report had been served on the court and the prosecution without the claimant's knowledge and consent.  He was unaware of the contents and did not authorise his solicitors to disclose it later.   
5.	At a later date the Crown Court acceded to the claimant's application to discharge and transfer the representation order to another firm of solicitors.  Apparently the claimant did not agree with the contents of the report when he saw it.  
6.	In August 2004 there was a hearing at the Crown Court at which counsel for the prosecution indicated, having made reference to the report and articulated certain parts of it to the judge, that the prosecution intend to make no reference to the money found in the shoe box the claimant's home.  The claimant was convicted of the indicted offence.  
7.	Over a year later, on 20 December 2005, a Crown Court Judge ordered the return of the £87,500, less £3,731.25 to the claimant.  The money was returned and immediately re‑seized on 24 April 2006.  
8.	The interested party applied to the Magistrates' Court for a forfeiture order in the sum of £87,500.  The interested party sought to rely on the accountants' report in support of the claim, the nub of the report being that the claimant did not follow the normal accounting practices in the running of his business and was not recording receipts.  
9.	On 12 May 2008, the District Judge heard submissions from both sides, the case having been adjourned from 13 March 2008 in order to obtain the Crown Court file and a transcript of the hearing of August 2004.  The claimant's case was that the document was privileged; that the privilege belonged to the client, which the client had not waived, and that the document was disclosed for a specific purpose and therefore could not be relied on in the forfeiture proceedings.  It was submitted that CPR 31.22, which both parties agreed applied, could not override legal professional privilege, and so it was submitted that privilege was not lost.  
10.	In the statement of Erroll Robinson, in support of the claim, it is said that it was further argued at the court below, that if privilege was lost, then the court, in any event, should not admit the report.  The Interested Party, whilst accepting that the report was potentially privileged, submitted that privilege had been waived as the claimant had given his authority to the legal team to act on his behalf and thus it was admissible.  The Interested Party relied on a number of cases in support, but argued as an alternative that privilege had been lost because the content of the report had been referred to in open court and therefore it came within the terms of CPR 31.22 because, the proceedings in the Magistrates' Court, although not governed by the CPR, were civil proceedings and thus, by analogy, the parties agreed that this was the appropriate guidance to follow.  The District Judge ruled that the report was admissible.
11.	We only have brief notes as to the judge's ruling, as set out by Mr Robinson in his statement of truth.  The effect of the ruling is that the District Judge said that she was satisfied, looking at the document and the transcript of the hearing of 9 August and the summary on the court record, that the report was referred to in open court and thus the rules defeated the defence submission.  She also went on to find that the common law and the rules were not at odds and that once the report was out in the public domain, it was out and thus was admissible.
12.	The grounds are that the District Judge took irrelevant matters into account, failed to take relevant matters into account and reached a decision which no reasonable District Judge properly applying the law could have reached.  The submissions before us are very much in the same vein as they were before the District Judge, (a) because the report was privileged, it could only be used in the proceedings that it had been disclosed in; (b) in any event, even if it had been disclosed to the court in summary, it was not in the public domain because the whole report should have been read out, and indirect allusion to it was not sufficient; (c) the report was not in the public domain even though if it was referred to, because it was not in front of a judge or jury.  Moreover, it is submitted that the Crown Court had not given permission for the report to be used in other proceedings.  If privilege has been lost, because of the reference to the report, then it is ultra vires the CPR, because the report had been disclosed for a limited reason.  In addition it is submitted that the claimant did not consent to the report being disclosed, but in any event the District Judge, even if the report had been referred to the Crown Court, should have ruled that privilege was not lost.
13.	Submissions have been made by the interested party with which the defendant agrees.  The first submission is that the claimant failed to act promptly in breach of CPR 54.  The basis of this submission is that the proceedings have been lengthy, the notice and material to be relied on was served on 19 December 2006, and the matter was listed nearly a year later on 2 October 2007, when the claimant sought to have it struck out as an abuse.  The judge found no abuse.  No mention was made at that time of the intention to challenge the admissibility of the report.  An application was made for funds to be released to fund judicial review of that decision, but the application was refused and the matter was set down for hearing in March 2008.  
14.	On the first day in March, the claimant's counsel argued that the report was inadmissible, no notice having been given of this to the interested party.  The District Judge adjourned the case in order to obtain the Crown Court file and the transcript of the hearing of 9 August 2004.   
15.	The case was re‑heard in May and the decision, which is the subject of this claim, made.  The case was then set down for trial for 7 July.  It was only on 2 July that the interested party was informed that the claimant intended to make an application for judicial review and the claim was issued on 3 July.  It is submitted, therefore, that the claimant had failed to act promptly in the civil proceedings and also in relation to the judicial review.
16.	Dealing with the substantive issues, the interested party makes the following submissions:  there was no evidence, only assertion, in front of the District Judge that the report had been disclosed without the claimant's authority; the impression was given to the court that the claimant had no personal involvement in the preparation of the report until it was clarified at the request of the interested party's legal representative; no evidence or witness statement was provided to the court, although the claimant said from the back of the court that he had not authorised the report.  The report was referred to in open court in the Crown Court and the conclusions, in particular, were referred to.  
17.	The interested party also relied at the hearing on a number of other cases, including that of Preston Borough Council v McGrath 19 May, The Times 2000, where the Court of Appeal held that the criminal proceedings were not bound by an implied undertaking not to use material to be obtained in the course of a criminal investigation, other than for purpose of proceedings.  (The claimant, it must be noted, argues this case is irrelevant.)
18.	The interested party relied on the exception in CPR 32 as of persuasive value.  The point is also made that the claimant now seeks to rely on a number of additional authorities, which were not in front of the District Judge.  It is submitted by the Interested Party that on the material in front of the District Judge the decision was perfectly reasonable.  It is submitted that the case, in any event, is unarguable.  
19.	The Single Judge when refusing leave found that, firstly, the application was not made promptly in all the circumstances, with no reasons being given for extending the time to make the application.  Secondly, permission was refused as a matter of discretion, as the claimant has a right of appeal under section 299 of the Proceeds of Crime Act 2002 if aggrieved by any order made by the Magistrates' Court.  Even if he had an arguable case, the Single Judge found that the claimant should first exercise that right, on the basis that it is not normal for an application for judicial review to be made on evidential rulings of magistrates with the consequent disruption to the proceedings in the court.  Normal routes of appeal should be followed.  He made no findings, therefore, on the arguability of the claim.
20.	The renewed grounds rely on the previous grounds and submit that the application was made within the three months period, although there was a delay because of counsel being tied up in two major cases before the Court of Appeal and the House of Lords.  Secondly, that the question of discretion does not arise as the application relates to legally privileged material.  Moreover, it is submitted that had the claimant followed the normal route of appeal, "the cat would have been out of the bag", because counsel has said in court today that the Crown Court (although the appeal is heard by way of re‑hearing) might have access to the District Judge's decisions and reasons.  
21.	 More importantly, it is submitted that this is a test case calling upon a ruling on the interpretation of CPR 31.22.  An additional ground has been added today by counsel in which he submits that there is another issue which the court ought to determine, and that is whether or not CPR 31.22 or the common law should be the applicable test.  However, counsel, when asked about the difference between the two, has conceded that he is not in a position to argue the point.
22.	For myself I do not understand the Single Judge's reference to the reasons for an extension of time.  While it is correct to say that the claimant launched the equivalent of an "ambush defence" at the hearing at the Magistrate's Court which caused the need for an adjournment, something to be deprecated in this day and age, so far as the challenge to the decision of the District Judge, the claim form was submitted in time, although it would have been satisfactory if the Magistrates' Court had been told at an early stage of the decision to initiate judicial review proceedings, so that the July date could have been vacated and given to another case.  The claim was filed in time, therefore, but it certainly was not made promptly, in particular in the light of the behaviour of the claimant during the course of the civil proceedings, which I have already alluded to.  
23.	I agree with the findings of the Single Judge in relation to the claim not being made promptly, but also, in relation to the question of remedy.  It is to be noted (and both parties were working under the auspices of CPR 31.22) that as objection was to be taken by the claimant to the admissibility of the report, the claimant had the remedy of applying to the Crown Court where that document was disclosed, to seek an order prohibiting its use in other proceedings under CPR 31.22(3).  That opportunity was not taken by the claimant and, in the light of the adjournment, it was an opportunity that could have been taken by the claimant, so that the matter was dealt with by the Crown Court that had received the document, before the hearing in May in front of the District Judge.  
24.	I note in passing that as for the hearing itself that is to follow, the claimant will be able, if he disagrees with the contents of the report, to call or give evidence to contradict or undermine it.  As for the normal route of appeal, the claimant has, as already indicated, submitted that "the cat would be let out of the bag".  I do not really understand this submission because both parties are in possession of the report, and it seems clear from the findings of the District Judge that the court was in possession of that document.  The fact that the court, which comes to its ultimate conclusion, has seen a document which it is said it should not have done, does not affect the claimant's rights to challenge the decision of the District Judge and the admissibility of the document on appeal.  
25.	In my judgment, there is no reason why the normal route of appeal cannot be pursued, should the finding of the District Judge, when this case comes to trial, be against the claimant.  On the evidence in front of me, this is not a case, in my judgment, for the reasons which I have already alluded to, in which permission should be granted. 
26.	SIR ANTHONY MAY:  I agree that this application for permission should be refused for the reasons Dobbs J has just given.  I gratefully adopt her account and facts of the circumstances in the application.  In my judgment the two reasons given by the Deputy High Court Judge, who refused permission on paper, were both correct and persuasive reasons for the decision.  First, delay: although the application was made within three months of the decision on 12 May 2008 it was not, in the circumstances, made promptly because 3 July 2008 was the best part of two months after the decision, and importantly only a few days before the hearing before the District Judge on 
7 July.  In this context it was late and disruptive.  Although that alone might not be decisive if the application were otherwise meritorious, it contributes to a decision to refuse permission.  
27.	Second, in my view unanswerably there is an alternative remedy by way of appeal under section 299 of the Proceeds of Crime Act 2002 if the District Judge's eventual decision is adverse to the applicant.  The appeal would be by way of re‑hearing and the court may make any order it thinks appropriate.  
28.	Accordingly the question of the admissibility of the report can be heard again on an appeal, and I do not see that the applicant would be prejudiced on such a re‑hearing because the question has already been dealt with in the Magistrate's court.  In my view, the application, or otherwise, of CPR 31.22 and its possible legitimacy is in the context of the present application, a distraction not least because, as Mr De Mello tells us, its application in the case was agreed and conceded before the District Judge.  
29.	Accordingly the renewed application for permission is refused.
30.	MR O'BRIEN:  Might I have a moment of your time?  In applications for judicial review there is normally no order as to costs, but of course you are able to award costs for the interested party if you consider that the application was completely without merit.  It will be my submission that this was completely without merit.  
31.	SIR ANTHONY MAY:  Just to be clear, are you applying for this hearing and the preparation of the alternative acknowledgment of service? 
32.	MR O'BRIEN:  In the alternative, for this reason, it would, in my submission, be that the application was unmeritorious from the beginning in which case I will seek the costs of the preparation of the acknowledgment of service and brief of today. 
33.	MRS JUSTICE DOBBS:  Are you on stronger grounds on 1 rather than 2?  
34.	MR O'BRIEN:  I would say I am on stronger grounds having had sight of the Single Judge's decision that it would be bound to fail.
35.	MRS JUSTICE DOBBS:  Delighted as I am of course to have you here today, you did not have to turn up.  Nobody, either the applicant or the court, suggested that you should.   
36.	MR O'BRIEN:  Indeed, I was aware that the defendant was not going to be here to defend its own decision.  Of course it is a decision that I have an investment in.
37.	MRS JUSTICE DOBBS:  It is still a permission application? 
38.	MR O'BRIEN:  Of course, my Lord. 
39.	MRS JUSTICE DOBBS:  Mr De Mello, we are not going to award costs for attendance today.  What about preparation of the acknowledgment of service? 
40.	MR DE MELLO:  He is entitled to it.
41.	MRS JUSTICE DOBBS:  We will make that order.