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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Iqbal v Wandsworth County Council [2013] EWHC 875 (Admin) (23 April 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/875.html Cite as: [2013] EWHC 875 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/04/2013

Mr Justice Wyn Williams:

Background Facts

1. This claim is one of a number in which the Claimant and the Interested Party are or have been involved. The Claimant is a former solicitor and employee of the Interested Party. Relations between them are fraught.
2. On 16 January 2009 the Interested Party (to whom I shall refer as Dean Manson in the remainder of this judgment) issued a claim in the Leeds County Court against Mr AM Butt and Mr and Mrs Nazeem. The basis of the claim was that Mr and Mrs Nazeem were liable to Dean Manson for unpaid fees and Mr Butt had guaranteed payment of those fees. At the time the proceedings were issued the Claimant was the principal of a firm of solicitors known as Ahmads' and he acted for Mr Butt from the commencement of the proceedings.
3. On 19 June 2009 DJ Flanagan refused an application by Mr Butt for summary judgment. On 20 October 2009 HHJ Belcher heard an appeal against that ruling. As I understand it the learned judge refused to grant summary judgment in favour of Mr Butt but only after Dean Manson had made a successful application to amend the basis of the claim against him. Accordingly, although Mr Butt's appeal was not successful an order for costs was made in his favour both in relation to the appeal and the costs incurred before DJ Flanagan. (In the remainder of this judgment these orders are referred to as the "first costs order").
4. Following receipt of the formal amended Particulars of Claim Mr Butt applied to strike out the claim as amended. That application was listed for a hearing on 18 January 2010 with the trial to follow on the following days if the application was unsuccessful. Shortly before 18 January 2010, however, Dean Manson filed a notice discontinuing the proceedings against Mr Butt. Accordingly on 18 January 2010 DJ Flanagan made an order as follows (referred to hereinafter as the "second costs order"):-

"1. The Claimant shall pay the First Defendant's costs of the claim (including the costs of the application dated 12 November 2009) to be agreed or detailed assessment.

2. The claim is transferred to Wandsworth County Court for the detailed assessment and any application by the First Defendant for costs to be assessed on an indemnity basis (both solicitors being in London and notice of the costs application not having been given to the Claimant's).

3…..

4…..

5 Any application for indemnity costs to be filed by 8 February 2010 with evidence."

In due course the claim was transferred to the Wandsworth County Court. Further and for reasons which need not be explained it was directed that costs issues were to be dealt with in the Senior Courts Costs Office.

5. On 4 August 2010 Dean Manson and Ahmads', on behalf of Mr. Butt, filed a consent order in the Senior Courts Costs Office. The order filed was in the following terms:-

"UPON AGREEMENT BETWEEN THE PARTIES SUBJECT TO THE FOLLOWING TERMS

1. The First Defendant's costs are agreed at a sum of £12,000 in full and final settlement of the First Defendant's application for detailed assessment;

2. The Claimant shall, having already paid in the sum of £6,000 to the First Defendant's solicitors, pay the balance of £6,000 by no later than 4pm on 10 August 2010 to the First Defendant's solicitors.

IT IS ORDERED BY CONSENT THAT

3. The First Defendant is allowed to withdraw the application for detailed assessment.

4….

5…."

6. The Claimant maintains that this agreement related only to the order for costs which had been made by HHJ Belcher – the first costs order. Dean Manson disputes this; it maintains that the agreement related to all issues of costs between themselves and Mr Butt and that it encompassed both the first and second costs orders.
7. Shortly after the consent order had been filed Ahmads', on behalf of Mr Butt, began summary proceedings for the assessment of costs under the second costs order. As the Claimant now acknowledges those proceedings were misconceived. The proceedings were dismissed by Deputy DJ MacKenzie on 20 September 2010.
8. On 6 December 2010 Ahmads' served upon Dean Manson a notice of commencement of assessment of bill of costs. The notice related to the second costs order i.e. the order made by DJ Flanagan on 18 January 2010. The Claimant asserts that Dean Manson did not respond to the notice in accordance with the CPR and, accordingly, on 30 December 2010 Ahmads' applied for a Default costs certificate. That application was considered in the Wandsworth County Court and the certificate was granted. The certificate specified that Dean Manson were responsible for costs in the sum of £12,384.
9. Once served with the Default costs certificate Dean Manson sought to set it aside. The application was supported by a witness statement dated 3 February 2011 and made by Ms Catijah Cooraban. There was a hearing of the application to set aside before DJ Rowley on 7 February 2011. The Claimant asserts (and it is not disputed) that at that hearing he notified the District Judge and Dean Manson and/or its representative that he was not present as Mr Butt's solicitor but present to represent himself because by a deed of assignment dated 31 January 2011 Mr Butt had assigned the debt allegedly owed to him by Dean Manson to the Claimant himself. No effective hearing took place before the District Judge who made an order in the following terms:-

"1. The hearing is adjourned to first open date after 21 days with time estimate of 90 minutes.

2. By 4pm on 21 February 2011 the Defendant do file and serve a witness statement attaching relevant documentary evidence in reply to Claimant's statement dated 3 February 2011.

3. Not less than 3, nor more than 7 days before the hearing Claimant to file and serve a bundle.

4. Costs reserved on the following bases:-

The court could not hear the application today because

a) Mr Iqbal had no right to be heard – he does not represent Mr Butt, and claims to be an assignee as stated above, but has not applied to amend the proceedings accordingly;

b) The Claimant's statement was not served until the working day prior to the hearing, and Mr Iqbal submitted that he intended to rely on a number of documents which were not to hand, he could not specify what they were.

5….."

On 14 February 2011 the adjourned hearing was fixed for 1 April 2011.

10. On the day after the hearing on 7 February 2011 Dean Manson wrote to Mr Butt at his home address. In effect it asked him for confirmation that the Claimant no longer acted for him and that he had assigned his alleged debt to the Claimant. So far as I am aware Mr Butt did not reply.
11. On or about 24 February 2011 the Claimant made a witness statement. Its purpose was to support an application that he should be substituted for Mr Butt in the proceedings which Dean Manson had commenced in 2009. The witness statement was also made so as to serve as a response to the application to set aside the Default costs certificate.
12. The witness statement made on 24 February 2011 was not served at that time. It was not until 24 March 2011 that the Claimant completed an application notice so as to substitute himself for Mr Butt in the proceedings.
13. The Claimant's application (and I assume witness statement) was received at Wandsworth County Court on 31 March 2011. (See Trial Bundle page 306). The application had not been properly issued and it had not been served when Dean Manson (by its counsel) and the Claimant appeared before DJ Guinan on the adjourned application to set aside the Default costs certificate which took place on 1 April 2011.
14. Following a reasonably lengthy hearing DJ Guinan made the following order:-

"First order

1. Default costs certificate dated 30 December 2010 is set aside.

2. The court records that the Claimants are entitled to its costs of the application. The amount paying party will be considered at the next hearing.

3. Directions hearing is listed on 25 May 2011 at 10.30 time estimate 1 hour 30 minutes.

4…..

5. The Claimant shall serve a copy of this order upon the First Defendant personally.

Second order

1. The oral application by Mr Iqbal for a hearing of his application dated 24 March 2011 received at court on 31 March 2011 on 1 April 2011 is refused.

2. Permission to appeal is refused."

15. As is apparent from the order DJ Guinan refused to permit the Claimant to make an application to substitute himself for Mr Butt in the proceedings. She did not dismiss the application for substitution and the Claimant fairly acknowledges that he always understood that the application for substitution would be heard at the directions hearing listed on 25 May 2011. The Claimant complains that he was not permitted to make representations as to why the Default costs certificate should not be set aside. Given the fact that the District Judge was not prepared to countenance dealing with the application for substitution it is hardly surprising that she refused to permit the Claimant to make representations. The Claimant had no standing of his own and he was not representing Mr Butt.
16. As is recorded in the order of DJ Guinan the Claimant sought permission to appeal against her refusal to consider his application for substitution. The Claimant did not seek permission to appeal against the decision that the Default costs certificate should be set aside.
17. On 19 April 2011 the Claimant filed an Appellant's notice at the Wandsworth County Court. His appeal as formulated in the notice was against the whole of the order made by DJ Guinan on 1 April 2011.
18. On 20 May 2011 HH Judge Knowles considered whether or not it was appropriate to grant permission to appeal. Her order was in trenchant terms. It provided:-

"1. The application made by Mashood Iqbal for permission to appeal the order dated 1 April 2011 is refused because the court considers the appeal has no real prospect of success.

Reasons

The said Mashood Iqbal is not a party to these proceedings and as such is not in a position, in any event, to seek permission to appeal the first order dated 1 April 2011.

a) So far as the second order dated 1 April is concerned the DJ was entitled to decline to hear the oral application of Mashood Iqbal.

b) The application had only been received in the court office on 31 March 2011 and had not been allocated a hearing date and nor had it been served on any of the parties. The DJ was acting well within the exercise of her case management powers in refusing to treat this as an oral application particularly since the First Defendant [Mr. Butt] was not present and therefore had no knowledge of it at all. It would have been remarkable had she acceded to the application against that background.

c) In any event, the court has not refused to deal with the application which is still pending.

The DJ therefore correctly applied the law, and there is no other compelling reason why the appeal should be heard.

2. The court certifies that this application is totally without merit pursuant to CPR 3.4(6)."

The concluding part of the judge's order notified the Claimant that he might, within 7 days of receipt of the order, apply for a hearing at which he could renew his application for permission to appeal.

19. It seems clear that this order was sent to the professional address of Ahmads', Mr Butt's former solicitors. Certainly, the Claimant tells me and I have no reason to doubt it that the order came to his attention on 26 May 2011 when he visited the office premises formerly occupied by Ahmads'.
20. Meanwhile, another hearing took place on 25 May 2011. This was the hearing which had been scheduled as a directions hearing in the order of DJ Guinan of 1 April 2011. Neither Mr Butt nor the Claimant attended this hearing. On 23 May 2011 the Claimant wrote to the court seeking an adjournment of the hearing but he received no response. The reality is that the Claimant had no reason to suppose that the hearing would not take place yet he did not attend.
21. The hearing on 25 May 2011 was also conducted by DJ Guinan. I have not been provided with a transcript of the proceedings but the order made by the District Judge is illuminating and worth repeating in full:-

"On Wednesday, 25 May 2011

District Judge Petrina Guinan sitting at 76-78 Upper Richmond Road, Putney, London considered the papers in the case and heard Counsel on behalf of the Claimant and the First Defendant not attending, but the court being satisfied he was aware of the hearing

Upon

1. The appeals of Mr Mashood Iqbal lodged 19 April 2011 having been dismissed as being totally without merit (CPR 3.4(6)) on 20 May 2011

2. Mr Iqbal not appearing or being represented to pursue his application to be substituted as First Defendant

3. The court being satisfied that Mr Butt, the First Defendant has been served with a copy of the order dated 7 April 2011 [the order made on 1 April] and that he has spoken to Ms Cooraban, solicitor, and that he is fully aware of the hearing listed 25 May 2011

4. The court considering the conduct of Mr Iqbal post closure of his solicitor's practice "Ahmads'"; is satisfied that his conduct was unreasonable (CPR 44.14) in that: he failed to file or serve any evidence of the consent of Mr Butt to his substitution application in the first instance and that he failed to attend court to pursue the application on the adjourned date, 25 May 2011 of which the court is satisfied that he was aware and that Mr Iqbal has allowed a now defunct solicitor's firm (of which he was sole principal) to remain on the court record as acting for the First Defendant and that in subsequent communications with the court and with the Claimant, Mr Iqbal has failed to identify the capacity in which he acts, either as a solicitor or as a litigant in person or other, his headed notepaper not confirming his status as practicing or non-practicing

The court ordered that:

1. Mr Iqbal's application to be substituted as First Defendant lodged at court on 31 March 2011 is dismissed

2. The First Defendant shall pay the Claimant's costs of £1,000 ordered on 20 September 2010 and the costs of the hearing February 2011 summarily assessed in the sum of £5512.15.

3. The First Defendant and Mr Iqbal shall jointly and severally pay the costs of the hearing 1 April 2011 summarily assessed in the sum of £1685.62 and the costs of today summarily assessed in the sum of £1892.60.

4. Unless the costs ordered in paragraphs (2) and (3) above shall be paid there shall be no further applications by the First Defendant, without permission of the court.

5. The court is satisfied that the CCJ for £6,000 against the Claimant in favour of the First Defendant dated 6 July 2010 has been satisfied and paid in full.

6 …. ……….."

22. In these proceedings the Claimant asserts that following his receipt of the order of HH Judge Knowles on 26 May 2011 he took steps to apply for an oral hearing of his application for permission to appeal against the order of 1 April 2011. He has produced in the Trial Bundle a copy of a letter dated 31 May 2011 which is addressed to the Wandsworth County Court and which seeks an oral hearing of the application for permission to appeal, a fax confirmation demonstrating that a document was sent at 7.49am on 31 May 2011 and a document entitled "Grounds of Renewal" which specifies the grounds upon which the Claimant suggests he should be granted permission to appeal against the order of 1 April 2011. According to the Claimant he received no response to the letter and enclosures.
23. On or about 10 June 2011 the Claimant issued an appellant's notice in respect of the order of DJ Guinan of 25 May 2011. One ground of appeal only was identified, namely that the order of 25 May 2011 was illegal because there was in progress an appeal against the earlier order of 1 April 2011. There was a short skeleton argument which amplified that ground.
24. The application for permission to appeal was considered HH Judge Knowles on 11 July 2011. The learned judge refused permission and certified that the application was totally without merit. Her reasons were as follows:-

"a) This is effectively an attempt to appeal the order dated 1 April 2011 which was the subject of the earlier order dated 20 May 2011 in which permission to appeal was refused (reasons for the refusal are set out on the face of the order dated 20 ay 2011 and are not, therefore, repeated here).

b) The District Judge noted in the course of her order that Mashood Iqbal was not present at the hearing to pursue his application to be substituted as First Defendant.

c) The said Mashood Iqbal did not apply within the space of 7 days for an oral hearing to renew his application to appeal the order dated 20 May 2011. He is now out of time to do so.

d) So far as the order dated 25 May 2011 is concerned the DJ was entitled to come to the reasoned conclusions that she did.

e) The DJ correctly applied the law and there is no other compelling reason why the appeal should be heard."

25. Upon receipt of the order of HH Judge Knowles the Claimant wrote a pre-action protocol letter to Wandsworth County Court. It is dated 21 July 2011. In it he complained that he had been deprived of his right to an oral hearing of his application for permission to appeal against the order of DJ Guinan dated 1 April 2011. On the same day the Claimant made an application for an oral hearing in relation to his application for permission to appeal against the order of 25 May 2011. Such an oral hearing has not taken place but the Claimant does not suggest that the court would not list such a hearing if he sought one; the Claimant assumes that the court is awaiting the result of this judicial review which was commenced in August 2011.

The scope of the challenge in these proceedings

26. In section 3 of the claim form the Claimant identifies the decision to be judicially reviewed as:-

"Decision by HHJ Knowles that the Claimant's application for oral hearing (in which he was seeking permission to appeal against the decision of DJ Guinan dated 01 April 2011) was out of time and hence oral hearing cannot be listed."

It is to be noted that the Claimant does not seek to challenge the decisions of HHJ Knowles that permission to appeal should be refused in relation to the orders of 1 April 2011 and 25 May 2011. If there was any doubt about this interpretation of the scope of the challenge it is laid to rest by the terms of the judgment of Stadlen J when he granted permission to apply for judicial review.

The relevant law

27. The circumstances in which the High Court will entertain an application for judicial review of a decision of a county court judge are considered in detail in Sivasubramaniam v Wandsworth County Court & Others [2002] EWCA Civ 1738 see in particular paragraphs 33 to 56. The court will always entertain a challenge if the claimant asserts that the county court judge has acted without jurisdiction. At paragraphs 33 and 34 in Sivasubramaniam Lord Phillips MR (as he then was) explained the position thus:-

"33. The County Court is an inferior court created by statute. The High Court has always asserted jurisdiction to review the question of whether the County Court has acted within its jurisdiction. Thus in R v His Honour Judge Sir Shirley Worthington-Evans, Clerkenwell County Court ex parte Madan & Another [1959] 2 All ER 457 at p.459, Donovan J, when delivering the judgment of the Divisional Court stated:

"I am quite satisfied that in a proper case this court has power by order of certiorari to bring up and quash the order of the County Court judge made without jurisdiction in that behalf (see Kemp v Balne (1)(1844), 1 Dow. & L. 885; and Colonial Bank of Australasia v Willan (2) [1874], L.R.5P.C. 417 at pp. 442 and 450)."

34. While the jurisdiction judicially to review the decisions of the County Court has not been in doubt, it has been rarely exercised. In recent times this is no doubt because a most satisfactory alternative remedy has existed in the form of an appeal to the Court of Appeal. Where judicial review has been granted, this has almost always been on the ground want of jurisdiction of the type required to found judicial review before Anisminic Ltd v Foreign Compensation Commission [1969] 2AC 147……"

28. In Subramaniam the Claimant was challenging a refusal by a circuit judge to grant permission to appeal in relation to an order made by a district judge. The Court of Appeal in that case and in cases which have followed accepted that judicial review might lie but only in very limited circumstances. In summary the Administrative Court may grant a quashing order in respect of a decision by a circuit judge to refuse permission to appeal if a) the judge has acted without jurisdiction as that would have been understood before the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; or b) there has been some fundamental departure from the correct procedures normally to be followed in a case of the type in question; or c) the judge has acted in complete disregard of his/her duties.
29. In the instant case, as I have said, the Claimant does not seek to impugn a decision to refuse permission to appeal. Nonetheless in their skeletons and oral submissions the Claimant and Mr. Singarajah, for Dean Manson, have proceeded on the basis that decisions of circuit judges other than decisions refusing permission to appeal may be susceptible to judicial review if the three criteria set out in the preceding paragraph are made out. I shall assume that to be the case without deciding whether that is so given that I have heard no contrary argument based, for example, upon the availability of the remedy of appeal in relation to most orders made by circuit judges.

Discussion

30. It is by no means clear to me that HH Judge Knowles actually made a decision to the effect that the Claimant had not renewed his application for permission to appeal within the specified time limit and that, in consequence, no renewed application by way of oral hearing would be permitted. It may be that this was simply part of the reasoning of the learned judge as to why permission to appeal the order of 25 May 2011 should be refused. If that is right this claim is bound to fail. However, it is clear that the learned judge, at the very least, appeared to reach a concluded view that no or no timely renewed application had been made for permission to appeal against the order of 1 April 2011. Accordingly I propose to proceed as if HH Judge Knowles had made an express order to the effect that the Claimant's renewed application for permission to appeal was dismissed on the ground that it had not been made in time.
31. In my judgment it is clear that the learned judge had jurisdiction to make such an order. Nothing in the Claimant's written material or oral submissions supports any contrary view. It is clear, in my judgment, that the case management powers conferred upon judges by the CPR can properly be regarded as the source of the jurisdiction to make an order of the type under scrutiny in this case.
32. Can it be established that the judge acted in complete disregard of her duties? In my judgment, the answer to that question is a resounding no. On 11 July 2011 the learned judge's task was to decide whether to grant permission to appeal against the order of 25 May 2011. In order to reach a decision about that it was also necessary for her to consider the background to the making of the order. For the purpose of this judgment I proceed on the basis that she concluded that that the Claimant had failed, either in time or at all, to renew his application for permission to appeal against the decision of 1 April. That was a relevant consideration in determining whether or not to grant permission to appeal against the later decision. Far from disregarding her duties all the indications are that she applied herself to her duties conscientiously. She must have had available to her the court file and she must have considered it in detail. There is simply no evidence that the judge acted in such a way so as to be guilty of a dereliction of duty.
33. Was there a fundamental departure from the correct procedures? I accept that the proceedings in question had a long and tortuous history – so much is clear from the narrative set out above. However, as from late January 2011 the position had crystallised. The Claimant had, so he said, taken an assignment of the debt allegedly owed by Dean Manson to Mr Butt. Accordingly Mr Butt had no further interest in the proceedings. The Claimant had no interest in the proceedings as Mr Butt's solicitor. His interest was as the assignee of the debt. If he wished to participate in the ongoing proceedings, therefore, it was his responsibility to seek and obtain an order for substitution. Yet he failed to take the first step towards achieving substitution until, literally, the day before the hearing on 1 April 2011. In my judgment DJ Guinan cannot be criticised for failing to determine the application for substitution during the course of the hearing on 1 April 2011; nor can she be open to any reasonable criticism for determining the application to set aside the Default costs certificate on that date. That the Claimant found himself in a position whereby he was not permitted to make detailed representations about whether the certificate should be set aside was, in reality, the result of his own inaction in pursuing his application for substitution.
34. The Claimant sent an Appellant's notice to Wandsworth County Court on or about 19 April 2011 and it was considered by HH Judge Knowles on 20 May 2011. That was the correct procedure. Her order was sent to the professional address of Ahmads'. The Claimant complains that the order should have been sent to his personal address. He points out that in the Appellant's notice of 19 April 2011 he indicated that he was the Appellant and that his address was his personal address.
35. As of 20 May 2011 (when the learned judge made her order) the Claimant had not been substituted as a party in the proceedings. It seems to me to be clear that he had no standing to challenge by way of appeal that part of the order of 1 April which set aside the Default costs order. Further no step had been taken to remove Ahmads' from the record as the solicitors acting for Mr Butt who was the only person with standing to challenge the setting aside of the Default costs order. In those circumstances I do not think that any member of the court staff can be criticised for posting the order of the learned judge to the solicitors who remained on the record as acting for Mr Butt. The act of posting the order to that address cannot be categorised as a fundamental departure from correct procedures. Further I have no doubt that HH Judge Knowles cannot be criticised for the activities of members of staff and she had no personal responsibility to ensure that her order was sent not to the address of the solicitors on record but to the Claimant's personal address.
36. The Claimant maintains that he became aware of the order on 26 May 2011 and faxed his renewal application to the court within a few days. As Mr Singarajah points out there is no independent confirmation that the court received such an application either as alleged by the Claimant or at all. The true position would be apparent from the court file and in my judgment it is reasonable to infer that the judge had considered the file with some care. The Defendant has played no part in these proceedings. However, it would have been open to the Claimant to seek disclosure of the court file from the Defendant to establish that it had received his renewed application and when that was yet he has not taken that simple step. In my judgment the Claimant has failed to prove that he made a renewed application for permission to appeal within the time afforded by the Rules. Certainly he has failed to prove that HH Judge Knowles fell into any kind of error, procedural or otherwise.
37. The order of 11 July 2011 made by HH Judge Knowles can be read in two ways. A possible reading of paragraph (c) of her reasoning is that no renewed application had been received by the court; an alternative reading is that no application had been made in time. If no application had been made at all it was obviously open to the learned judge to conclude that such a length of time had gone by that any future application for an extension would be refused. If the true position was that an application had been made but outside the relevant time period the learned judge was entitled to reach a conclusion about whether or not an extension should be granted. Given the history of events since January 2011 it does not surprise me that the learned judge took the view that no further extensions of time should be granted.
38. In the light of the foregoing I have reached the clear conclusion that it cannot be said that there was some fundamental departure from the correct procedure in this case – quite the contrary, the procedures adopted appear entirely conventional.
39. The Claimant submitted on more than one occasion that he has been denied an oral hearing which "is his right". In summary, the Claimant's right to an oral hearing was always dependent upon an application for such a hearing being made in accordance with the rules i.e. within the specified 7 day period. It is apparent from the face of the order of HH Judge Knowles that she did not consider that such an application had been made and, accordingly, whether or not the Claimant was to be afforded an oral hearing of his application for permission to appeal depended upon the exercise of judicial discretion. There is simply no evidence before me that the learned judge exercised her discretion wrongly never mind departed fundamentally from correct procedures.
40. In my judgment, there is no substance to this claim. It must be dismissed.
41. Even if I had concluded that there had been some fundamental departure from the correct procedures I would have had considerable reservations about granting a quashing order in this case. The plain fact is that the Claimant has not obtained an order for substitution and until he does he can have no standing to seek to enforce the claim for costs either by way of a Default costs certificate or after a contested hearing as to the merits of the claim for costs. The quashing order sought in this case would have no bearing upon whether an order for substitution should be made. At any oral hearing of the Claimant's renewed application for permission to appeal against the order of 1 April 2011 a circuit judge would, in reality, be confined to considering whether DJ Guinan should have heard the application for substitution on 1 April 2011. Even if the court was persuaded that she should have acceded to that course of action (which seems to me to be a remote possibility) that would not mean that an order for substitution would necessarily be made. In fact, no such order could be made given that the substantive application was dismissed on 25 May 2011. An order for substitution can only be made now if there is a successful appeal against the order of 25 May 2011.