One of many highlights of the year for public lawyers is the publication of the Administrative Court’s Judicial Review Guide. So eagerly anticipated is this document that it tends to be promptly flouted by claimant and defendant lawyers alike.

Introduction

In theory at least, the Guide is a very helpful document that distills the entire judicial review procedure in one place.

The main innovations since the 2017 Guide relate to a run of recent cases on procedure in judicial review proceedings. The Court’s listing policy as of June 2018 and its costs guidance are annexed to this latest edition.

RELATED: What’s new in the 2017 Administrative Court guide on judicial reviews?

Grounds for judicial review

What’s new?

The 2017 Guide required that claimants must set out their arguments as shortly as possible but ‘in full‘. The 2018 Guide adds several further prescriptions:

6.3.4.1 …The grounds must be stated shortly and numbered in sequence. Each ground should raise a distinct issue in relation to the decision under challenge. Arguments and submissions in support of the grounds should be set out separately in relation to each ground.

Why does it matter?

The Court’s concern seems to be about lack of clarity in some of the written arguments presented to it, and the habit of those arguments evolving over the life of a claim.

This point reflects the case of Talpada v SSHD [2018] EWCA Civ 841, an immigration case in which the Court of Appeal was critical (at § 23) of attempts to expand the grounds of appeal beyond what had been pleaded and granted permission. Lord Justice Singh’s judgment in Talpada stressed the need:

  • for procedural rigour in public law litigation‘ (§ 55) – although importantly, ‘procedure must not become the master of substance where, for example, an abuse of power needs to be corrected by the court’ (§ 67);
  • for grounds to be clear and succinct (§ 68);
  • for parties to distinguish in their arguments between ‘procedural fairness‘ (ie. that government decisions should be unbiased and provide a fair opportunity for those affected to be heard) and ‘substantive fairness‘ (ie. the abuse of power such as acting irrationally or going back on a clear promise). Parties must avoid conflating the two (§ 56);
  • for Skeleton arguments not to be used as an opportunity to expand the grounds being argued (§ 67 and 68). Such attempts should be resisted through robust case managment powers.

RELATED: How and when to ask for permission to appeal from a lower court – some guidance 🤞🏽

See also the comments in Hickey v Secretary of State for Work and Pensions [2018] EWCA Civ 851 at §§ 74 to 75 (again on grounds of appeal).

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Filing documents by email

What’s new?

Pernickety requirements about emailing the Court have become pernicketier. The 2017 Guide said:

6.7.6. An email sent to the Court must include the name, telephone number and address / email address for contacting the sender and it (including attachments) must be in plain or rich text format rather than HTML. 

The 2018 Guide adds:

Where proceedings have been started, it must also clearly state the Court’s reference number for the case, the names of the parties and the date and time of any hearing to which the email relates.

Why does it matter?

If you do not comply with these requirements, the Court may reject the email.

Grant of permission for judicial review

What’s new?

Minor amendments to sections 8.1.1 and 8.2.2 make clear that if the Court grants permission, a claim will proceed to a hearing of full argument only on those grounds that have been granted permission. Section 8.2.4.3 adds that the Court may permit a claimant to raise new grounds where no permission has been granted, but this is unusual.

Why does it matter?

The Court is clamping-down on those seeking to expand their grounds for judicial review after the permission stage (see the discussion in Talpada above).

RELATED: Commercial judicial review clarifies High Court’s power to grant permission to appeal

Threshold for relief

What’s new?

New section 10.5.3. makes reference to the fact that if the Court thinks it highly likely that the outcome of the decision under challenge would have been the same even if no legal errors had been made, the Court will not grant relief.

Why does it matter?

This is simply a reminder of the effect of section 31(2A) of the Senior Courts Act 1981, which somehow was omitted from the 2017 Guide.

Damages

What’s new?

The 2018 Guide adds the requirement that:

11.8.2.3. Where the claim includes a claim for damages under the Human Rights Act 1998, the claim for damages must be properly pleaded and particularised.

(Also see section 6.3.4.2. in the same terms)

Why does it matter?

This point comes from the case of R (Nazem Fayad) v SSHD [2018] EWCA Civ 54, an review of an unfavourable costs order by a Master of the High Court in a claim for judicial review, where Lord Justice Singh (again) in the Court of Appeal gave general guidance at §§ 48, 54 to 56.

There, he stressed the need for proper pleading of claims for damages under the Human Rights Act 1998 in judicial reviews. Failure to explain such claims for damages and how they relate to the principles of the European Court of Human Rights may lead to adverse consequences in costs for claimants.

Applications for an extension of time

What’s new?

The new text refers to the 3 governing principles in Denton v TH White Ltd [2014] EWCA Civ 906 which deal with relief from sanctions applications, (as confirmed in R (Hysaj) v SSHD [2014] EWCA Civ 1633 and more recently in Fayad) as applying to applications for an extension of time.

Why does it matter?

By now we already know about the impact of Denton, however, the Court seems nevertheless keen to remind practitioners of its application and the need for procedural rigour in judicial review proceedings.

Interim relief and urgent removal cases

What’s new?

The 2018 Guide refers to recent approval in R (SB (Afghanistan)) v SSHD [2018] EWCA Civ 215 of the guidelines in R (Madan) v SSHD [2007] 1 WLR 2891, which requires urgent applications to:

  • be made promptly and with maximum possible notice to the SSHD;
  • contain the history of all previous applications made;
  • explain how any new application differs from the old ones; and
  • explain why the new arguments could not have been made earlier where repeat applications are being made.

The 2018 Guide highlights that the usual principle on interim relief that requires a party to show “a strong case for relief in advance of the substantive hearing” does not apply in the context of challenges to removal that are made under Articles 2 and 3 of the European Convention of Human Rights (see SB at § 78).

Also note that there is a new form N463 available for urgent applications (since 26 March 2018). Where representatives have been instructed late, they must explain why (see section 16.2.2.1.). Annex 4 – the Listing policy dedicates a section to the procedure followed for urgent applications.

Why does it matter?

The case of SB highlights the particular risks when new legal representatives are instructed at the last minute to obtain injunctions against a person’s removal. The Court of Appeal’s comments in SB should be kept firmly in mind. Failure to comply is likely to lead to adverse costs consequences and public criticism of the professionals involved.

Costs

What’s new?

The 2018 Guide refers to the recent case of ZN (Afghanistan) & Anor v SSHD [2018] EWCA Civ 1059, where it was held that the fact that a party is publicly funded may be taken into account when the Court is deciding whether or not to make an order for costs – although it is not alone a good reason for making a costs order.

Why does it matter?

Arguments over costs will frequently arise where a judicial review claim has been compromised by consent and there is scope for debate as to who has ‘won’ or the extent of a party’s victory.

In this scenario, if the Court makes no order for costs, lawyers in publicly funded cases will only be able to recover low rates of pay. If however, the Court makes a costs order in favour of a publicly funded party, their lawyers can recover commercial rates of pay – which can make a substantial difference in complex cases.

Annex 5 contains the Court’s costs guidance in these cases (from April 2016). Costs submissions should be tailored accordingly.

I hope you’ve found this brief analysis useful but be sure to refer to the full Guide as well.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

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