High Court warning over JRs that “evolve exponentially”

Andrews: Lesson of Talpada has not been learnt

A High Court judge has criticised public law practitioners for letting judicial reviews “evolve exponentially” so that the claim advanced at the hearing bears “little resemblance” to that for which permission was granted.

Mrs Justice Andrews warned that the court may either refuse to allow the claim to proceed on the later grounds or penalise claimants in costs even if their claim succeeds.

The claim for judicial review in the case before her initially related to the Crown Prosecution Service’s (CPS) refusal of prisoner John Dalton’s subject access request, but by the time the case reached court, it was challenging subsequent decisions made by the CPS and sought to rely on grounds other than those for which Mr Dalton was given permission to proceed.

“No steps were taken (even at the hearing) to seek permission to amend the claim form and statement of facts and grounds to challenge either of the later decisions,” the judge said.

“The nearest one got to an amended statement of facts and grounds were skeleton arguments from Mr Dalton’s counsel, Dr O’Shea. Counsel’s skeleton arguments are not a substitute for statements of case in proper form, irrespective of whether the claim is a public law claim or a private law claim.”

Andrews J said Dr O’Shea’s most recent skeleton argument took points of substance to which the CPS’s counsel had had no prior opportunity to respond.

“The CPS was seemingly unconcerned by this highly unsatisfactory state of affairs, but I did not share its complacency,” she went on.

“Of course, this court must be assiduous to avoid form taking precedence over substance in cases where this would inhibit its important function of holding public bodies to account for abuses of power or other serious public law errors affecting the rights of the citizen.

“However, that does not mean that the parties are free to disregard the rules of civil procedure that apply to public law claims.”

Andrews J cited the comments of Lord Justice Singh in R (Talpada) v Secretary of State for the Home Department [2018] EWCA (Civ), when he said it could not be emphasised enough that public law litigation must be conducted with an appropriate degree of procedural rigour and highlighted the trend of grounds of challenge “evolving” during a case.

She said: “That judgment was handed down in April 2018. Although those observations, with which I respectfully agree, were made over two years ago, and received publicity at the time, it seems that the message is still not being heeded, or not being heeded sufficiently.

“Judges of this court have been forced to remind practitioners of what was said in Talpada on several occasions since…

“I wish to make it clear to practitioners who appear in the Administrative Court that failure to observe the requirements of the rules and/or case management directions, with the result that claims for judicial review evolve exponentially, denying the court any opportunity to consider material changes and evaluate how they impact on the proceedings, may result in orders being made with a view to reinforcing the message in Talpada.

“The court may refuse to allow the claim to proceed on grounds for which permission has not been given. It may also make adverse costs orders, even in cases where the claimant is ultimately successful in obtaining judicial review on new or expanded grounds.”

This case was “even more egregious” than Talpada, Andrews J observed, as it was not just informally evolving grounds of challenge, but also “an attempt to bring a claim for judicial review of a different decision or decisions, on different grounds to those which for which permission was granted, and to do so without giving the court any opportunity to consider whether there was justification for allowing the fresh claim to be brought within the existing proceedings (as there sometimes is)”.

She continued: “A line must be drawn somewhere, and this case falls comfortably on the wrong side of it.”

The judge decided to treat it as a rolled-up hearing of a claim for judicial review of the later decisions by the CPS, and ruled that, had an application for permission to amend and to proceed with judicial review of the later decisions within the existing claim been made at the appropriate time, “it should have been refused, and therefore I am going to refuse permission now”.

Andrews J said the way in which the matter was presented to the court also “left a great deal to be desired”.

She explained: “Although a hearing bundle was lodged with the court in June, I received the updated hearing bundle electronically at 20.45 on the night before the hearing.

“Mr Dalton’s solicitors explained that they had had technical problems uploading it, for which they apologised, but they did not explain why the attempt to upload an updated bundle was left until the day before the case was due to be heard.

“Many of the key documents were missing from both the original bundle and the updated bundle. In any event the latter was lodged far too late to be of much assistance in preparation. Some of the missing documents were handed up during the hearing. I therefore had no opportunity to consider them in advance.”

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