Permission to appeal refusal by Circuit Judge - Judicial Review route?

In R. (on the application of Mozolevsky) v Newcastle upon Tyne County Court [2026] EWHC 2639 (Admin) ('Mozolevsky'), Hill J heard an substantive judicial review, brought by Mr Mozolevsky, against a circuit judge's decision (the 'CJ Decision'), and in doing so, explained the law surrounding bringing judical review proceedings against judicial decisions (particularly, circuit judge decisions). 

The particular context was that, on 11.6.25, a district judge had made a decision, ordering a Mr Mozolevsky to pay a water company, Northumbrian Water Ltd (the Interested Party), a small sum of money (the 'DJ Decision'). Mr Mozolevsky sought permission to appeal, against the DJ Decision, from a circuit judge, but, on 4.7.25, the circuit judge refused to grant Mr Mozolevsky permission to appeal ('PTA').  

In ordinary civil proceedings, an circuit judge decisions have a standard route of appeal (see CPR r.52). But where a circuit judge's decision is either:

(1) to refuse permission to appeal, against a district judge's decision, at an oral permission to appeal hearing; or

(2) (a) to refuse permission to appeal, against a district judge's decision, on paper; (b) to certified the application for permission to appeal as Totally Without Merit, and (c) to determine that, pursuant to CPR 52.4(3)(assuming the circuit judge has this power[0]), the claimant is to be precluded from requesting that the refusal be reconsidered at an oral permission to appeal hearing,

there is no route of appeal. With no route of appeal, the issue arises, whether a judicial review route exists, and if so, what is the threshold for bringing such judicial review proceedings? 

CPR r.52.4

It is helpful to set out CPR r.52.4 first. r.52.4 is entitled 'Determination of applications for permission to appeal to the County Court and High Court' and reads:

'(1) Where an application for permission to appeal is made to an appeal court other than the Court of Appeal, the appeal court will determine the application on paper without an oral hearing, unless the court otherwise directs, or as provided for under paragraph (2).

(2) Subject to paragraph (3) and except where a rule or practice direction provides otherwise, where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at an oral hearing.

(3) Where in the appeal court a judge of the High Court, a Designated Civil Judge or a Specialist Circuit Judge refuses permission to appeal without an oral hearing and considers that the application is totally without merit, the judge may make an order that the person seeking permission may not request the decision to be reconsidered at an oral hearing.

(4) For the purposes of paragraph (3), “Specialist Circuit Judge” means any Circuit Judge in the County Court nominated to hear cases in the Circuit Commercial, Chancery or Technology and Construction Court lists.

(5) Rule 3.3(5) (party able to apply to set aside, etc., a decision made of court’s own initiative) does not apply to an order made under paragraph (3) that the person seeking permission may not request the decision to be reconsidered at an oral hearing.

(6) A request under paragraph (2) must be filed within 7 days after service of the notice that permission has been refused.'

The legal framework

Under the heading 'The legal framework', Hill J explained, from paragraph 15 to 20:

'The ability to seek judicial review of the decision of a Circuit Judge is very limited.

In Sivasubramaniam v Wandsworth County Court and ors [2002] EWCA Civ 1738, [2003] WLR 475, the Court of Appeal held that claims for judicial review of the decisions of Circuit Judges would be summarily dismissed save in very exceptional circumstances. This was because: (i) if the claimant had failed to seek permission to appeal under the statutory system for appeals, there was an alternative remedy available; and (ii) if the claimant had sought such permission, but the appeal court had refused it, it was not appropriate that there should be a further review by the High Court, as Parliament had put in place a “fair, adequate and proportionate” appeals system [46]-[48] and [53]-[54].

The reasons why the judicial review jurisdiction remains available in a very limited class of case is that “as a matter of jurisprudential theory” Circuit Judges have a limited statutory jurisdiction and it must be open to the High Court to review whether that jurisdiction has been exceeded. However, as Lord Phillips MR (as he was at the time) recognised, the possibility that a Circuit Judge might exceed their jurisdiction where that jurisdiction is the statutory power to determine an application for permission to appeal from the decision of a district judge is “patently unlikely”: [54]. Lord Phillips MR concluded the court’s judgment in Sivasubramaniam as follows:

“Exceptional circumstances

56. The possibility remains that there may be 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. If such grounds are made out we consider that a proper case for judicial review will have been established”.

In R (Strickson) v Preston County Court and ors [2007] EWCA Civ 1132, Laws LJ, with whom Rimer and Gage LJJ agreed, observed that a case where a court had acted in complete disregard of its duties was “only doubtfully an instance of pre-Anisminic jurisdictional error”. Further, where an appeal tribunal declined to grant permission in order to decide a point of law, where there was an imperative need for decision in the public interest, could not be so categorised. However, each of these cases exemplified “a defect much more fundamental than an error of law in the particular case”: [31]. At [32], he questioned how such a defect should be described in principle. He answered it as follows:

“…a distinction may be drawn between a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both), and a case where, as I would venture to put it, the judicial process itself has been frustrated or corrupted. This, I think, marks the truly exceptional case. It will or may include the case of pre-Anisminic jurisdictional error, where the court embarks upon an enquiry which it lacks all power to deal with, or fails altogether to enquire or adjudicate upon a matter which it was its unequivocal duty to address. It would include substantial denial of the right to a fair hearing, and it may include cases where the lower court has indeed acted “in complete disregard of its duties” (Gregory), and cases where the court has declined to go into a point of law in a particular area which, against a background of conflicting decisions of a lower tribunal, the public interest obviously requires to be decided (Sinclair). The Sinclair type of case is perhaps a sub-class of the Gregory case. Both, in any event, may be less hard-edged than the pure pre-Anisminic jurisdictional error case. The courts will have to be vigilant to see that only truly exceptional cases -- where there has indeed, as I have put it, been a frustration or corruption of the very judicial process -- are allowed to proceed to judicial review in cases where further appeal rights are barred by section 54(4)” [my emphasis].

In R (Cart) v The Upper Tribunal [2009] EWHC 3052, 1 AC 663 [2012] 1 AC 663 at [99] Laws LJ sought to clarify what he had said in Strickson at [32], thus:

“I hope it is clear from the context that the reference there to a ‘substantial denial of the right to a fair hearing’ was intended only to denote the case where there has been a wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal” [my emphasis].'

So, the threshold for judicial review proceedings against a circuit judge's decision to refuse permission to appeal, relies on a distinction begin appreciated, between:

(1) a case where the judge simply gets it wrong, even extremely wrong (and wrong on the law, or the facts, or both) (Strickson, paragraph 32) - this does not meet the threshold; 

(2) the judicial process itself has been frustrated or corrupted (Strickson, paragraph 32; or '...a frustration or corruption of the very judicial process') - a truly exceptional case (Strickson, paragraph 32) - this does not meet the threshold. There will be a defect much more fundamental than an error of law in the particular case (Strickson, paragraph 31). This category of case:

(a) will or may include the case of pre-Anisminic jurisdictional error, where the court embarks upon an enquiry which it lacks all power to deal with, or fails altogether to enquire or adjudicate upon a matter which it was its unequivocal duty to address.

(b) will include substantial denial of the right to a fair hearing - which only denotes the case where there has been a 'wholly exceptional collapse of fair procedure: something as gross as actual bias on the part of the tribunal', and

(c) may include cases where:

(i) the lower court has indeed acted “in complete disregard of its duties” (Gregory), and

(ii) the court has declined to go into a point of law in a particular area which, against a background of conflicting decisions of a lower tribunal, the public interest obviously requires to be decided (Sinclair). Note, the Sinclair type of case is perhaps a sub-class of the Gregory case.

Facts in Mozolevsky

To understand the facts in Mozolevsky, it is helpful first to consider what Early Neutral Evaluation ('ENE') is and the principles governing it.

ENE

In Mozolevsky, Hill J explained ENE, at paragraphs 3 to 6:

'In Telecom Centre (UK) Ltd v Thomas Sanderson Ltd (Early Neutral Evaluation) [2020] EWHC 368 (QB) at [6] Master McCloud described ENE as follows:

“…a procedure which involves…an independent party expressing an opinion about a dispute or parts of it. The evaluative nature of ENE means that positive or negative views as to merits are expressed, perhaps robustly, by the judge. It is therefore different from many forms of ‘mediation’ where the focus is facilitative. The process to be adopted for Judicial (or any other form) of ENE is not stated in the Civil Procedure Rules and it is intended that the approach can be tailored to the needs of any given case. Thus one may for example proceed wholly on the basis of written evidence and submissions or by way of written evidence and written argument supplemented at an oral hearing”.

As the White Book 2026 explains at paragraph 14.5, ENE has been a feature of the court’s general powers of case management since October 2015, when the power (now found in CPR r.3.1(2)(p)) to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective” was amended by the addition of the following words:“, including hearing an Early Neutral Evaluation with the aim of helping the parties settle the case”: Lomax v Lomax [2019] EWCA Civ 1467; [2019] 1 WLR 6527.

Some of the key features of ENE were described by Master McCloud in Telecom Centre (UK) Ltd as follows:

“8. ENE is a confidential process. The judge dealing with the ENE will thereafter not (absent agreement) try the case or deal with contentious applications...

10. The outcome of Judicial ENE is normally ‘without prejudice’ unless privilege is mutually waived and is normally not binding unless the parties agree. It is possible that agreed terms of ENE may be that the decision is binding only upon the happening of certain events, or binding only for a defined period such as where an issue is dealt with on an interim basis.

11. Papers considered at the ENE will be returned to the parties at the end and not retained in the court file so as to ensure that subsequent judges or the public will not access them”.

As at February 2020, when judgment was handed down in Telecom Centre (UK) Ltd, these principles were set out in the Business and Property Courts Guide. They were then added to the King’s Bench Division Guide (at sections 10.6-10.13 in the 2025 and 2026 editions). There is no basis for thinking that these principles do not apply to ENE proceedings conducted in the County Court.'

ENE in Mozolevsky

In late 2024, Northumbrian Water Ltd (the Interested Party) commenced proceedings against Mr Mozolevsky, with the proceedings transferred to the Defendant County Court. The claim was allocated to the small claims and a hearing listed on 11.6.25 for a conciliation appointment / ENE to be carried out.

(1) paragraph 3 of the order required the parties to make their final offers to settle the claim to each other no less than 7 days before the ENE. Paragraph 3 also made clear that the Judge conducting the hearing would not be the Judge who conducted the final hearing, (in accordance with Telecom Centre (UK) Ltd at [8]); and that the Judge would expect to be told about the offers, whether or not they were made without prejudice. Mr Mozolevsky made an offer within the deadline set.

(2) on 11.6.25, the ENE took place. It was conducted by the District Judge. Later that day, the District Judge made an order giving judgment for the Interested Party and ordering Mr Mozolevsky to pay the Interested Party £288.54. Mr Mozolevsky was confused by this order when it arrived at his home.

Application for Permission to Appeal the DJ's Decision

On 23.6.25, Mr Mozolevsky filed an Appellant’s Notice, seeking permission to appeal the 11.6.25 Order (DJ decision). Mr Mozolevsky argued that the District Judge’s order was wrong because:

(1) the DJ had been acting as the neutral evaluator in the ENE process; and

(2) paragraph 3 of the 10.4.25 order expressly precluded her from acting as the trial judge and making a final order against him, of the kind referred to in the preceding paragraph.

Mr Mozolevsky contended that the District Judge’s order had been made in breach of his right to the determination of his civil rights and obligations by an independent and impartial tribunal, as protected by Article 6(1) of the European Convention on Human Rights (“the Convention”) and Schedule 1 to the Human Rights Act 1998 (“the HRA”).

On 24.6.25, Mr Mozolevsky's Appellant’s Notice was placed before the Circuit Judge.

On 30.6.26, the Circuit Judge asked court staff to refer the Appellant’s Notice to the District Judge “for her comments, before I give directions on the appeal”. Later on 30.6.25, the District Judge responded to the Circuit Judge, saying as follows:

“It is correct that I stated to [the] parties that I would not be the trial judge if I gave indications as part of ENE” (paragraph 11)

Thereafter, Hill J in Mozolevsky recorded, at paragraphs 12 to 14, that:

'The District Judge wrote several further lines of text to the Circuit Judge, but these have been redacted under the label “Censored under ENE privilege”. It nevertheless appears clear from the structure of this document and from what happened afterwards that the District Judge reported to the Circuit Judge what had happened at the ENE.

On [4.7.25] the Circuit Judge made the order which is challenged in these proceedings. He refused the application for permission to appeal, giving the following reasons:

“[Mr Mozolevsky] admitted that he owed the amount claimed by the [Interested Party] in the sum of £288.54. The Judge satisfied herself that the debt existed and that the amount was correct. It was therefore entirely correct and appropriate for the Judge, on the occasion of the ENE, to enter Judgment in favour of the [Interested Party] in the amount claimed. Upon [Mr Mozolevsky's] unqualified admission of the debt, there is no further or additional triable issue. The litigation is at an end”.

The Circuit Judge certified the application for permission to appeal as Totally Without Merit (“TWM”), such that pursuant to CPR 52.4(3), the Claimant was precluded from requesting that it be reconsidered at hearing, as the order made clear. The order continued “This decision is final and not subject to review or appeal”.'

Judgment in Mozolevsky

Hill J in Mozolevsky held, on the unopposed judicial review[1], that, on the facts, the case was highly unusual and that the judicial review threshold had been met. The orders made were either: (a) pre-Anisminic jurisdictional errors; and/or (b) a 'frustration or corruption of the…judicial process' and/or a 'wholly exceptional collapse of fair procedure'. Hill J said, at paragraphs 21 to 26:

'In my judgment, in this highly unusual case, based on the evidence before me, [Mr Mozolevsky’s] submissions are sound. I have reached this conclusion for the following reasons.

First, [Mr Mozolevsky] denies that he had made any “unqualified admission of the debt” as contended by the Circuit Judge in his reasons. In any event, even if he had made such an admission in the ENE that fact should have remained confidential to the parties and the Judge conducting the ENE (unless he had agreed to be bound by it, which he had not) in accordance with Telecom Centre (UK) Ltd at [8].

Second, in light of those principles the Circuit Judge should not have sought out information about the ENE process from the District Judge; and she should not have provided it. Further, the Circuit Judge should not have relied on the information he so gained about the ENE process in making his order.

Third, the Circuit Judge erred in holding that it was “entirely correct and appropriate” for the District Judge to enter a final judgment in favour of the Interested Party as a result of the ENE process. On the contrary, as the Judge who conducted the ENE process, the District Judge was expressly prohibited from acting as the “trial judge” (and by analogy, the judge making a final order in the case) by paragraph 3 of the [10.4.25] order and by Telecom Centre (UK) Ltd at [8].

Put another way, the Circuit and District Judges made orders they had no jurisdiction to make, as they wrongly relied on the confidential nature of the ENE process. Accordingly, they can be categorised as pre-Anisminic jurisdictional errors. Further or alternatively, the incorrect reliance on the ENE procedure was, in my judgment, a “frustration or corruption of the…judicial process” and a “wholly exceptional collapse of fair procedure” as described respectively in Strickson at [32] and Cart at [99]

Grounds 2 and 3 in [Mr Mozolevsky's] statement of facts and grounds, which contended that the Circuit Judge had acted procedurally improperly and irrationally by seeking out and taking into account information about the ENE process, are therefore made out. For these reasons, [[Mr Mozolevsky] did not have a fair hearing of his application for permission, by an independent and impartial tribunal, contrary to Article 6(1) of the Convention and section 6 of the HRA, as he contended under Ground 4.'

Two other grounds were held not to be made out (see paragraphs 27 to 29[2]).

Conclusion

Hill J concluded, at paragraph 42, that she would:

(1) allow Mr Mozolevsky's claim for judicial review;

(2) quash the Circuit Judge’s decision dated 4.7.25;

The quashing order was made under under section 31(1)(a) of the Senior Courts Act 1981 (paragraph 31).

(3) substitute, for the Circuit Judge's decision dated 4.7.25, a decision to the effect that [Mr Mozolevsky] was granted permission to appeal the District Judge’s 11.6.26] order;

To explain. Mr Mozolevsky invited Hill J to substitute her own decision, for that of the Circuit Judge, under section 31(5) (b) of the Senior Courts Act 1981, on the basis that, if the Circuit Judge had properly considered his Appellant’s Notice, permission was bound to be granted (paragraph 32). As to this, Hill J said, at paragraphs 33 and 34:

'Under section 31(5A) of the Senior Courts Act 1981, the power conferred by section 31(5)(b) can only be exercised where a quashing order has been made in respect of the decision of a court of tribunal on the ground that there has been an error of law, and where “there would have been only one decision which the court [below]…could have reached”.

In my judgment, in this unusual case, this test is satisfied.' 

Hill J continued, at paragraph 34:

'Based on the content of the Appellant’s Notice, the only decision that could properly have been reached was that Mr Mozolevsky had a “real prospect of success” in appealing the District Judge’s order under CPR r. 52.6(1), such that permission should have been granted. I therefore substitute the decision made by the Circuit Judge on 4 July 2025 with a decision to the effect that Mr Mozolevsky is granted permission to appeal the District Judge’s 11 June 2025 order.'

Hill J declined to go further, and allow the appeal. This, Hill J said, would be inappropriate. Hill J reasoned that '...these proceedings only “relate” to the “decision” of the Circuit Judge, such that it is only that decision which can be quashed under section 31(1)(a) of the SCA, as read with section 31(5) thereof.' (paragraph 35)

(4) give directions for the conduct of that appeal (that it be listed before a Circuit Judge who had had not previous involvement with the matter, at a different County Court centre)(paragraph 36);

(5) order that the records of the 11.6.25 ENE be removed from the relevant County Court file. This mandatory order, requiring the Court staff to perform this removal, was made under section 31(1)(b) of the SCA 1981 (paragraph 31).

Further authorities 

Readers want to read further, might want to consider reading LM Associates Ltd v Gibbeson [2020] EWCA Civ 1460, Court of Appeal (Henderson LJ; Flaux LJ; Asplin LJ) in relation to a High Court Judge's decision to refuse permission to appeal. 

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