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Claimant taken by surprise during hearing by a new issue

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Re: Claimant taken by surprise during hearing by a new issue

Postby dls » Tue Jan 20, 2015 3:25 pm

It is that judge who is assessing the propriety of an action going ahead. His job is to come to an honest conclusion - doing justice between the parties.

You appear to be suggesting that a judge who sees a clear fault in the application should do injustice to the other side, breaching his duty to decide fairly according to the arguments and facts presented, from some possible (unadmitted) error.

Moreover you suggest that this goes as to jurisdiction?
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Re: Claimant taken by surprise during hearing by a new issue

Postby south1 » Tue Jan 20, 2015 4:21 pm

Should not have the second judge adjourned the hearing so that I was able to be properly prepared to discuss also this issue? Moreover I ask for an adjournment of the case but he refuses

However I think that he wanted simply to get rid off my case because the way he talked to me at the beginning of the hearing telling me

"Want do you want you"
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Re: Claimant taken by surprise during hearing by a new issue

Postby Denning » Tue Jan 20, 2015 4:38 pm

dls wrote:It is that judge who is assessing the propriety of an action going ahead. His job is to come to an honest conclusion - doing justice between the parties.

You appear to be suggesting that a judge who sees a clear fault in the application should do injustice to the other side, breaching his duty to decide fairly according to the arguments and facts presented, from some possible (unadmitted) error.

Moreover you suggest that this goes as to jurisdiction?

You are again wrong. The essence of the sifting stage is for the litigant to persuade the judge that he or she has a meritorious claim for Judicial Review. It is not the duty of the judge to be an advocate for the unrepresented public authority party who would have his say during the full Judicial Review Hearing.

There was no fault seen by the second judge but an act in excess of jurisdiction made by him! Since the litigant never raised that issue of public body at the Oral Hearing and that issue never determined by the first judge on the papers it was not opened to the second judge within the sifting stage 2 (oral hearing) to bring it up. We have seen several cases of litigants forgot to highlight where their cases pivot and which appeared obvious for the judge to have used to help the litigants and many of you here said it was not the duty of the judge to highlight the argument. Now that it swings the other way you, unsurprising, you are in support of the judge's unfairness.

Only a judge at full Judicial Review hearing has the jurisdiction to consider what you are now saying. The jurisdiction of the Oral Hearing is set on the basis of the first judge determination on the papers and the particulars of the grounds advanced by the litigant for/at the Oral Hearing.
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Re: Claimant taken by surprise during hearing by a new issue

Postby atticus » Tue Jan 20, 2015 4:56 pm

Denning

Other than "fairness", are you able to cite any authority for what you say? I ask that you speak with such certainty, and apparently on the basis of experience of courts at all levels, and so it would surprise me if you were not able to assist the OP with references to rules, statutes, case reports etc.
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Re: Claimant taken by surprise during hearing by a new issue

Postby atticus » Tue Jan 20, 2015 5:01 pm

Let me also ask. If the task of the judge is to ascertain whether the case being put forward has sufficient merit, should he not test a defence that goes to the jurisdiction of the Court to entertain the claim? Surely the Claimant should be able to show that he has some realistic prospect of succeeding on the issue. Surely the judge should not ignore the point if it presents an insurmountable obstacle to the Claimant's case?
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Re: Claimant taken by surprise during hearing by a new issue

Postby Denning » Tue Jan 20, 2015 5:13 pm

south1 wrote:Should not have the second judge adjourned the hearing so that I was able to be properly prepared to discuss also this issue? Moreover I ask for an adjournment of the case but he refuses

However I think that he wanted simply to get rid off my case because the way he talked to me at the beginning of the hearing telling me

"Want do you want you"

Adjournment is about fairness and no longer a discretion. See the House of Lords Judgment in Gillies v. Secretary of State for Work and Pensions [2006] UKHL 2 and which was applied in Terluk v Berezovsky (Rev 1) [2010] EWCA Civ 1345.

On the highlighted: The lead judge of the Administrative Court is known to make such type of comments to litigants. Also a number of the judges appointed less than four years ago have been heard making such rude comments to litigants in their courts. One of them, extreme right wing, was a barrister in a multi-billion pounds dispute before he was made a High Court Judge before the dispute ended.

Out of curiosity can you describe the judge seniority without having to disclose his name?
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Re: Claimant taken by surprise during hearing by a new issue

Postby atticus » Tue Jan 20, 2015 5:23 pm

Having just read those two cases, am I wrong to think that the first is not on this point at all and that the second does not help?
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Re: Claimant taken by surprise during hearing by a new issue

Postby Denning » Tue Jan 20, 2015 5:28 pm

atticus wrote:Let me also ask. If the task of the judge is to ascertain whether the case being put forward has sufficient merit, should he not test a defence that goes to the jurisdiction of the Court to entertain the claim? Surely the Claimant should be able to show that he has some realistic prospect of succeeding on the issue. Surely the judge should not ignore the point if it presents an insurmountable obstacle to the Claimant's case?

The litigant does not need any case law for a competent judge to know that he is not sitting as the full trial judge.

The second judge cannot test a defence that goes to jurisdiction if the first judge has accepted jurisdiction with JR.

Permission to apply for JR has a subtle difference from permission to appeal. The first judge on the papers was under a duty to make all necessary consideration and to either allow or refuse permission. If the litigant was refused and nothing as to whether it was within time or the other issues as to jurisdiction raised by the first judge the second judge at Oral Hearing as no jurisdiction to reopen them until the substantive hearing. At the Oral Hearing the judge is limited to consider the grounds submitted by the litigant and may expand on the decision of the first judge and not to expand on what the first judge never considered.
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Re: Claimant taken by surprise during hearing by a new issue

Postby Denning » Tue Jan 20, 2015 5:29 pm

atticus wrote:Having just read those two cases, am I wrong to think that the first is not on this point at all and that the second does not help?

On point as to adjournment.
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Re: Claimant taken by surprise during hearing by a new issue

Postby south1 » Tue Jan 20, 2015 5:35 pm

Concerning the seniority of the second judge. He is called "His Honour Judge"
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