Public law: update (Jul/Aug 18)
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Marc Bloomfield
Samuel Jacobs, Lindsay Johnson, Jesse Nicholls and Martin Westgate QC examine the latest judicial review statistics and cases on costs, duty of candour, conduct, human rights, appeals and grounds.
Statistics
In the first quarter of 2018, 949 claims for permission to claim judicial review were lodged, of which 473 were immigration and asylum cases (Civil justice statistics quarterly: January to March 2018 tables, Ministry of Justice, 7 June 2018). In the same quarter, 69 cases had been granted permission on the papers and two at a renewed hearing: 260 were refused on the papers and 13 refused on renewal. There were 71 cases eligible for a final hearing, having been granted permission.
The time taken for cases lodged to permission decision was 43 days on average for those determined on the papers and 63 days for those determined at a renewal hearing.
Of the 949 cases lodged, only 346 reached permission stage and 41 were declared totally without merit. In civil, non-immigration, cases, of the 412 cases lodged in the first quarter of 2018, 146 reached permission stage and 21 were classed as totally without merit.
Case law
Costs
R (Hawking and others) v Secretary of State for Health and Social Care and NHS Commissioning Board
[2018] EWHC 989 (Admin),
22 February 2018
Criminal Justice and Courts Act 2015 s88 makes provision for costs capping orders, ie, orders that limit or remove the liability of a party to judicial review proceedings to pay another party’s costs. Such an order can only be made if permission to claim judicial review has been granted and: (a) the proceedings are public interest proceedings; (b) in the absence of the order, the claimant would withdraw the claim for judicial review; and (c) it would be reasonable for the claimant to do so (s88(6)).
The claimants challenged the proposed introduction of accountable care organisations (ACOs). In their application for permission, they also sought a costs capping order, on the basis that they were crowdfunded and the statutory criteria were met. On the papers, Walker J granted permission but refused a costs capping order on the basis that the crowdfunding would meet any potential liability. The claimants renewed the application to an oral hearing.
The court rejected a submission that there had to be exceptional or compelling reasons before it could make an order that had been refused on the papers: there was no bar to reconsideration at an oral hearing of a refusal on the papers; the role of the court was to apply the statutory framework, which did not include any test of compelling basis for reconsideration.
As to the application itself, the proceedings met the statutory test of public interest: even though the defendant had agreed to undertake a consultation exercise before introducing the ACOs, it was highly likely that some of the claimants’ concerns relating to transparency and vires were matters with a high degree of public interest and plainly would be engaged in the judicial review. The statutory requirement (Civil Procedure Rules 1998 (CPR) r46.17(1)(b)) for a claimant for a costs capping order to provide details of their financial resources applied notwithstanding that the claimants had obtained social funding via the general public. It was, however, appropriate for the court not to disclose those details to the defendant, nor make them public.
The court was satisfied that the claimants would not continue the claim in the absence of a costs capping order. The key question was whether they would be acting reasonably in doing so. That was a test of objective reasonableness. Applying the principles set out in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 in relation to protective costs orders, the instant case was precisely the sort of case in which a costs capping order should be made; it was unreasonable to expect the claimants to bear the burden of a high degree of financial risk and their stated intention to withdraw should an order not be made was objectively reasonable in the circumstances.
R (RL and others) v Croydon LBC1See also pages 24 and 46.
11 April 2018
The claimant – a Ghanaian national and mother of three children aged 12 and under – sought judicial review of the defendant’s failure to provide accommodation for her and her children pending an assessment of the children’s needs under Children Act (CA) 1989 s17. Interim relief was granted, requiring the provision of accommodation. A week after issue, the defendant produced a child in need assessment, which recommended that accommodation was provided to the children while the claimant regulated her immigration status.
Permission was refused on the papers. The reasons for refusal noted that the grounds ‘disclose[d] no coherent case’ (see para 29) and ordered the claimant to pay the defendant’s costs of the acknowledgement of service. The claimant renewed. Prior to the renewal hearing, the parties compromised the proceedings, subject to determination of the question of costs on written submissions. Refusing costs on the papers, the court found that the claimant was not the successful party and that ‘it simply [could not] be said that [was] is tolerably clear that the claimants would have won if the matter had not settled’ (see paras 33 and 56).
On appeal, the Court of Appeal emphasised that the challenge could not, as a matter of law, have been to the failure to provide accommodation but rather to the failure to undertake an assessment. On that basis, the claimant could not succeed on her claim for costs on the basis that she was the successful party: the measure of success was whether, as a result of the proceedings being brought, the assessment was completed substantially sooner than it otherwise would have been and there were no reasons to suppose that to have been the case.
Although the judge determining costs should have attempted to form her own view on the merits, rather than adopting the view of the judge refusing permission, if she had done so it was very doubtful that the claim would have succeeded. A court should be slow to find that an authority was guilty of delay simply because it had missed a benchmark target or its performance may be shown to have been sub-optimal in some particular respect.
Duty of candour
R (KI) v Brent LBC2See also page 45.
10 May 2018
The claimant challenged the refusal of the local authority to acknowledge that he had been a child owed a duty under CA 1989 s20 and was accordingly a former relevant child under s23C.
In pre-action correspondence, the claimant’s solicitors had emphasised the need to provide disclosure and to comply with the duty of candour. The files disclosed contained significant redactions. A witness statement was provided from the allocated social worker that did not address the social care records in any substance. The court expressed concern that the local authority had not provided an accurate account of the material facts and at the hearing an unredacted copy of the social care records (amounting to some 400 pages) was provided. The court directed written submissions on whether the local authority had complied with the duty of candour.
In those written submissions, the local authority accepted that it did not have appropriate procedures in place to enable the lawyers to be sure that the duty of candour had been complied with; the legal team did not have direct access to client records and the unredacted version was not provided to the legal team until the day before the hearing. The local authority indicated that it would undertake an investigation.
The duties of candour set out in The Administrative Court judicial review guide 2017 (July 2017) apply not only to claimants but also to public authority defendants as they will often have access to information and material that is unavailable or unknown to the claimant. The absence of a general requirement to provide disclosure should not encourage a public authority to consider that it can adopt a less rigorous approach than a claimant or to redact relevant material and thus not ensure that an accurate account of the facts is presented to the court (applying R (Midcounties Co-Operative Ltd) v Forest of Dean DC [2015] EWHC 1251 (Admin)). The duty of candour is particularly important in cases involving vulnerable children and young people, and authorities with functions in respect of children and young people should have in place appropriate procedures. It is the responsibility of the lawyers involved to ensure that all those involved in the local authority are aware of the duty of candour and comply with it.
Conduct
R (Sathivel) v Secretary of State for the Home Department; R (Ajani) v Secretary of State for the Home Department; R (Ncube) v Secretary of State for the Home Department3See also page 17.
26 April 2018
The Administrative Court has an inherent jurisdiction to govern its own procedure, including ensuring that lawyers conduct themselves according to proper standards of behaviour: R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin). A judge may record improper conduct in a court order and refer the matter to the relevant High Court judge, who may send a ‘show cause’ letter, inviting a response to matters of concern. The case may then be referred to the Divisional Court.
In each of these three immigration cases, the court made Hamid orders. The Divisional Court found that each complaint was justified and gave guidance on the conduct of lawyers bringing claims for judicial review.
A lawyer owes a paramount duty to the court. Where a solicitor inherits a case from another firm of solicitors, there is a duty of enquiry to take all due steps to ensure that they are fully equipped with all relevant documentation before commencing proceedings. The lawyer must ensure that they have the fullest possible information before drafting any sort of an application to court or instructing an external advocate; that duty is necessary to ensure that the advocate can furnish the court with the most accurate version of events possible and avoid misleading the judge.
The advocate is under a duty to prepare court documents only on the basis of information that they know has been verified and must candidly bring to the attention of the court gaps in the evidence. If it is not possible, for entirely genuine reasons, to obtain full instructions, the court must be made fully aware of the limitation of the evidence that is placed before it and the lawyer must be prepared to explain why no steps have been taken to seek out and obtain the full background documents and facts; what is unacceptable is for a lawyer to advance a case based on incomplete and inaccurate instructions, and present them to the court (by commission or omission) as true when no steps have been taken to obtain the full file and verify the facts. A lawyer cannot simply take a client’s instructions at face value but should start from the proposition that it is the lawyer and not the client who knows how the legal system operates.
On the facts, the solicitors had failed in their duty to ensure that full and accurate accounts were placed before the court, had failed to make proper enquiries to ensure that they were fully informed before pursuing proceedings and had failed in their duty of candour to the court. There had also been a failure to ensure that full documentation was placed before the court and a failure to be candid about the fact that three similar Hamid orders had been made in the past. Documents had been filed that were ‘irredeemably bad’ (para 91) and were devoid of principle, law or fact and were drafted by unqualified trainees.
The court gave express guidance on the procedure to follow in such applications in the future:
1when a legal representative is sent a ‘show cause’ letter, they must respond in a way that includes a witness statement drafted by the person with conduct of the case and attended by a statement of truth;
2the response to a ‘show cause’ letter must include a full, candid and frank response to the question posed in the letter and the issues set out in the court order; it must set out a full account of the efforts made by the solicitor to obtain all relevant documents from the old solicitor;
3the court will not necessarily refer the matter to the Divisional Court before passing the file to the Solicitors Regulation Authority (SRA) as a complaint; a complaint may be made on receipt of the response to the ‘show cause’ letter; and
4the court will consider a referral to the SRA on the first occasion that the lawyer falls below the relevant standards.
Human rights
R (Adath Yisroel Burial Society and Cymerman) v HM Senior Coroner for Inner North London
27 April 2018
On 30 October 2017, the defendant adopted an ‘equality protocol’, paragraph 1 of which provided that: ‘No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officers or coroners’ (see para 2 of the judgment). The claimants challenged that policy on the grounds that: (1) it fettered the coroner’s discretion to take expedited decisions with regards to the needs of particular families and was irrational (breach of article 9 of the European Convention on Human Rights); (2) it breached article 14, when read with article 9; (3) it was indirectly discriminatory contrary to Equality Act (EA) 2010 s19; and (4) it breached the public sector equality duty in s149 of that Act.
In written evidence, the defendant stated that her policy was intended to avoid any ‘queue jumping’, which in her experience ‘places those who are pushed back further in the queue at a material disadvantage’ (see para 50). She suggested that her policy was consistent with guidance from the chief coroner and applied so that ‘no sector of the community is prioritised’ (see para 56), although she acknowledged that cases of organ donation and homicide investigation would be prioritised.
The claim was allowed. The prohibition against fettering of discretion usually applies where the source of a discretionary power is legislation; it does not usually apply to the power of the crown or the royal prerogative (R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44). It is, however, the common law that is the source of the power to retain the body of a deceased person and that sets the limits of that power and the principles that govern its exercise. One of those principles is the principle against fettering of discretion. In any event, most of the functions exercised by a coroner derive from legislation. Accordingly, the power being exercised by the coroner was a power akin to a power derived from statute and the principle against fettering a discretion applied. The policy was an unlawful fetter on the decisions as to when and how to exercise her statutory powers and how long to retain custody of a body; it imposed a blanket rule that, in making those decisions, the coroner would not take into account the circumstances of any individual family where they had a religious basis. Singling out from consideration representations that had a religious basis was incapable of rational justification.
Article 9 requires not that there should be any favouritism but that there should be a fair balance struck between the rights and interests of different people in society. It is a requirement of both the Jewish and Muslim faiths that burial of the deceased takes place as soon as possible and, accordingly, article 9 was engaged; the policy adopted by the defendant interfered with the right to manifest religion. When determining whether that interference was proportionate, the court had to ask (i): was the legitimate objective sufficiently important to justify limiting a fundamental right; (ii) were the measures that had been designed to meet it rationally connected to that objective; (iii) were they no more than necessary to accomplish it; and (iv) did they strike a fair balance between the rights of the individual and the interests of the community? The coroner’s policy was not proportionate as it did not strike a fair balance between the rights concerned but rather required the coroner to leave out of account altogether the requirements of Jewish and Muslim people.
Where, as here, article 14 is engaged, what must be justified is not only the underlying measure, but also the discrimination (A and others v Secretary of State for the Home Department [2004] UKHL 56). Even if the policy in this case could be justified under article 9, there was no justification for the discrimination involved.
Although EA 2010 s113(1) provides that proceedings relating to a contravention of the Act should be brought in the county court, s113(3) provides that that does not prevent a claim for judicial review. The court accordingly had jurisdiction to consider the complaint under the EA 2010 and it did so because, inter alia, there was a significant overlap between the challenge under the Act and the ground based on article 14. The second claimant was entitled to compare herself to a person who did not have her religious belief; that person would be able to comply with the strict requirements of their faith in a way in which the second claimant could not and she would accordingly be at a disadvantage. Accordingly, the claimants were entitled to rely on the concept of indirect discrimination and, given the finding on proportionality, there had been a breach of EA 2010 s29. The coroner did, however, have due regard to the public sector equality duty when adopting her policy.
Appeals
R (Goring-on-Thames Parish Council) v South Oxfordshire DC and Goring and Streatley Community Energy Ltd
25 April 2018
CPR 52.30 creates a power to reopen a final appeal (including a decision on permission to appeal). The court will only do so where it is necessary to avoid real injustice, the circumstances are exceptional and there is no alternative remedy. The power is reserved for cases where ‘the integrity of the earlier litigation process has been critically undermined’ (Lawal v Circle 33 Housing trust [2014] EWCA Civ 1514 at para 65).
The claimant applied for judicial review of the grant of planning permission by the defendant. At a final hearing, the judge concluded that the planning decision did not comply with either the Planning (Listed Buildings and Conservation Areas) Act 1990 or the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 SI No 1824, but did not grant any substantive relief on the basis that consideration of those matters would not have changed the decision. The claimant appealed; permission was refused on the papers. The claimant applied to reopen the application for permission on the basis that the judge had failed to grapple with the claimant’s principal ground of appeal.
The court refused the application. The jurisdiction under CPR 52.30 is exceptional in the sense that it will be engaged only where some obvious and egregious error has occurred in the underlying proceedings and that error has vitiated the very process itself; it will never be engaged simply because it might plausibly be suggested that the decision of the court in the underlying proceedings was wrong. That principle applies equally to applications to reopen decisions to refuse permission to appeal as to applications to reopen the substantive decision of the court. Where the application is to reopen a decision on permission, the first question will be whether the judge sufficiently confronted and dealt with the grounds of appeal; if the process has been critically undermined, the court will consider whether it is highly likely that the decision on permission would have been different. The judge refusing permission had made no fundamental legal errors.
Grounds
R (Gallaher Group Ltd and others) v Competition and Markets Authority
16 May 2018
In March 2003, the Office of Fair Trading (OFT, now the Competition and Markets Authority) began an investigation into alleged price-fixing arrangements in the tobacco market. It issued a statement of objections to 13 different parties, including the claimants. Accompanying those statements were letters offering the possibility of a reduction in the financial penalty if the companies cooperated with the investigation. The claimants entered into such an agreement. The OFT subsequently concluded that there had been price-fixing and imposed fines: the claimants accepted the reduced financial penalties.
Another company (TMR), during negotiations for such an agreement, asked what the effect would be of a successful appeal by a third party on the agreement. The OFT responded that ‘to the extent the principles determined in the appeal decision are contrary to or otherwise undermine the OFT’s decision … the OFT will apply the same principles’ (see para 9). An appeal tribunal subsequently allowed an appeal against the OFT’s conclusions on price-fixing ([2011] CAT 41). TMR wrote to demand that the decision against it be withdrawn. The OFT agreed to withdraw its decision, based on their earlier representations.
The claimants issued judicial review proceedings for the return of the financial penalties, asserting that the principle of equal treatment and fairness required the OFT to refund the money on the same basis as it had done to TMR. In response, the defendant stated that the agreement with TMR had been made in error and that a mistake should not be repeated where public funds are concerned. The High Court dismissed the claim ([2015] EWHC 84 (Admin)) but the Court of Appeal declared that the OFT had acted unlawfully by not offering the claimants the assurance given to TMR ([2016] EWCA Civ 719). In both courts, it was common ground that the OFT was subject to ‘public law requirements of fairness and equal treatment’.
The Supreme Court allowed an appeal. Domestic law does not recognise equal treatment as a distinct principle of administrative law; consistency is desirable, but is not an absolute rule. It was not, however, necessary to rely on any such general principle to find that there was a general duty to offer equal treatment during the negotiations, not least as the defendant had committed to doing so and to that extent there was a legitimate expectation that it would do so. Nor is there any distinct legal criterion of ‘substantive unfairness’, as distinct from procedural unfairness. Such a concept adds nothing to the ordinary principles of judicial review, notably irrationality and legitimate expectation.
On the facts, the OFT’s decision to honour the assurance given to TMR, but not to replicate it in favour of the claimants, was both objectively justified and a rational response to the predicament that it faced.
 
1     See also pages 24 and 46»
2     See also page 45»
3     See also page 17»

About the author(s)

Samuel Jacobs
Samuel Jacobs is a barrister at Doughty Street Chambers.
Lindsay Johnson
Lindsay Johnson is a barrister at Doughty Street Chambers.
Jesse Nicholls
Jesse Nicholls is a barrister at Doughty Street Chambers.
Martin Westgate QC
Martin Westgate QC is a barrister at Doughty Street Chambers.