Judicial Review reform: What does “totally without merit” mean? – Paul Bowen QC
25 April 2013
What is the test the Court should apply in deciding whether an application is ‘totally without merit’? The question is prompted by the Lord Chancellor’s announcement on 23 April 2013 that he will press ahead with plans to reform judicial review procedure to target ‘weak, frivolous and unmeritorious cases’. A key change will be to give judges of the Administrative Court, when refusing permission to apply for judicial review on the papers, the power to certify a claim as ‘totally without merit’ (TWM), thus depriving the claimant of the right to renew the application before the court at an oral hearing.
This power is one that is already exercisable by judges when refusing applications for permission to appeal on the papers under Civil Procedure Rules (CPR) r. 52.3(4A), the effect of which is to prevent the appellant from renewing the application orally. However, it is better known – or, at least, more widely used – in the context of the courts’ jurisdiction to make ‘civil restraint orders’ under CPR 3.11. Indeed, the Administrative Court has had power to certify an application as TWM for the purposes of making a ‘civil restraint order’ since those rules were introduced in 2004 (see R (Kumar) v Secretary of State for Constitutional Affairs  1 WLR 536). Although no statistics are currently available for this use of the power to certify a claim as TWM, according to Lynne Knapman, Head of the Administrative Court Office, these are now being collated for applications made since the beginning of 2013.
There is plenty of case-law on the making of ‘civil restraint orders’, but very little as to the test the Court should apply when deciding a case or application is TWM. Clearly, a case that is TWM is not necessarily the same as one that is not ‘arguable’, which is the test for whether permission to apply for judicial review should be granted in CPR 54.4. A claim is ‘arguable’ if ‘there is an arguable case that a ground for seeking judicial review exits which merits full investigation at a full oral hearing with all the parties and all the relevant evidence’ (for which see Sharma v Browne-Antoine  UKPC 57, para 14(4)). Something more than ‘unarguable’ is required, but what?
I suggest that a finding of TWM should not be made unless the claim is so hopeless or misconceived that a civil restraint order would be justified if such applications were persistently made. This interpretation is consistent with the history of the relevant provisions and with the importance that the Courts place on the right of access to justice, including the right to make oral representations.
The designation of a case as ‘totally without merit’ was originally developed by the Courts in their inherent jurisdiction to restrain vexatious litigants by way of a ‘civil restraint order’. In Bhamjee v Forsdick (Note)  1 WLR 88 the Court of Appeal reviewed the powers of the courts to make such orders. One such power, a ‘Grepe v Loam Order’, the Court renamed a ‘civil restraint order’, which would be appropriate in cases where (para 39):
… the litigant’s conduct has the hallmark of one who is content to indulge in a course of conduct which evidences an obsessive resort to litigation and a disregard of the need to have reasonable grounds for making an application to the court. Normally we would not expect a civil restraint order to be made until after the litigant has made a number of applications in a single set of proceedings all of which have been dismissed because they were totally devoid of merit. The characteristics of “vexatious” conduct set out by Lord Bingham of Cornhill CJ in his judgment in Attorney General v Barker  1 FLR 759 (see para 7 above) may be a useful indicator of the need for a civil restraint order.
The characteristics of ‘vexatious conduct’ set out by Lord Bingham were as follows:
“The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.”
The decision in Bhamjee prefigured amendments to the Civil Procedure Rules in 2004 which made explicit statutory provision for the making of ‘civil restraint orders’ in cases where a person has made applications which were ‘totally without merit’. Those amendments were made by the Civil Procedure (Amendment No. 2) Rules 2004, SI 2004/2072 which introduced express power in the Court to determine that a statement of case (CPR 3.4) or other application (CPR 23.12) was ‘totally without merit’, whereupon the Court was required to consider whether it was appropriate to make a ‘civil restraint order’ under CPR 3.11. Practice Direction 3C provides for the circumstances in which a civil restraint order may be made. By para 2.1:
2.1 A limited civil restraint order may be made by a judge of any court where a party has made 2 or more applications which are totally without merit.
SI 2004/2072 also introduced new CPR 52.10(5) by which the Court of Appeal was empowered to determine that an appeal was ‘totally without merit’ and was required to record that fact and then consider whether a civil restraint order was appropriate. However the Court did not have power to prevent an appellant from renewing an application for permission to appeal following refusal on the papers even thought it was TWM, a problem identified in Perotti v Collyer-Bristow  EWCA Civ 639. CPR 52 was then amended to introduce such a power, which became CPR 52.3(4A) (SI 2006/1689). From 1 October 2012 CPR 52.3(4A) has been amended further so that a High Court judge or other first instance judge may also determine that an application for permission to appeal is TWM so that the application may not be reconsidered at an oral hearing (SI 2012/2208).
Two serious consequences
Accordingly, a finding that an application for apply for judicial review is ‘TWM’ will now have two serious consequences for an appellant. First, and in accordance with the Lord Chancellor’s proposals, he will be deprived of the right to renew his application by way of an oral hearing. This right is not to be removed lightly. In Sengupta v Holmes  EWCA Civ 1104, a case which concerned an application to appeal in judicial review proceedings, Laws LJ referred at paragraph 38 to “the central place accorded to oral argument in our common law adversarial system” and went on:
“This I think is important, because oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it.”
At paragraph 47 of his judgment in the same case, Keene LJ identified a marked distinction between the role and efficacy of written advocacy and that of oral argument:
“One important factor which exists both at a renewed application hearing and at a substantive appeal hearing is the benefit enjoyed by the court of listening to oral argument. This is a fundamental part of our system of justice and it is a process which as a matter of common experience can be markedly more effective than written argument. It will be evident from what has been said earlier in this judgment that, before hearing oral argument in this case, I had some considerable sympathy for the applicant’s arguments. The process of oral debate has persuaded me that those arguments are unsound. I mention this simply as one example of the impact which oral submissions may have under our system on the decision-making process. Yet it is a feature absent from the process by which the decision by the single judge on the papers is arrived at.”
The second adverse consequence is that that where a TWM finding is made the court order will have to specify that fact and the court must consider whether to make a civil restraint order. This is already specified by CPR rr. 3.3(7), 3.4(6), 23.12 and 52.10(6)) and will doubtless be introduced into CPR 54. As CPR Practice Direction 3C makes clear, a civil restraint order can be made after as few as two applications have been found to be TWM.
It is this context which leads to the conclusion that a finding of TWM should only be made where the claim is so hopeless or misconceived that, if persisted with, a civil restraint order would be justified. As I have observed, the Administrative Court already has power to certify a claim as TWM for the purposes of considering whether to exercise its jurisdiction to make a civil restraint order. Any change to the CPR allowing the Courts to make such findings so as to prevent the renewal of an application at an oral hearing does not affect the test the Court should apply of when a claim is ‘totally without merit’ – although we should probably expect the power to be used more often.
Paul Bowen QC is a barrister at Doughty Street Chambers
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You may find useful guidance in two decisions of the Inner House of the Court of Session, construing the meaning of the phrase “frivolous, vexatious or totally without merit” in s2 of the Legal Profession and Legal Aid (Scotland) Act 2007: Council of the Law Society of Scotland v. Scottish Legal Complaints Commission 2011 SC 94, and Kidd v. Scottish Legal Complaints Commission  CSIH 75. In the former case the court (which included Lord Reed, now of course a Supreme Court Justice) considered and rejected the parallel with civil restraint orders as connoting some sort of element of abuse of process, and preferred to construe the words “totally without merit” according to their ordinary meaning in context as connoting a relatively low hurdle.
No jurisdiction to stay the order below in the Upper Tribunal?
This note relates to a narrow band only of the ‘without merit’ jungle; but it perhaps raises an aspect of the TWM issue where the certifying judge gets the law wrong in the first place. How fully will the reasons for a TWM be set out?
What may yet prove to be an unlawful refusal to accept jurisdiction by the Upper Tribunal, provides an example parallel to a TWM order. Tribunal Procedure (Upper Tribunal) Rules 2008 r 5(3)(m) enables the Upper Tribunal to suspend operation of a First-tier Tribunal decision pending their decision on the full appeal. Such applications (there called a ‘stay’) are dealt with daily in normal civil jurisdictions), mostly in a matter of minutes. In child support cases – and perhaps with other cases within its jurisdiction – it is not yet clear whether the Upper Tribunal accepts that it has jurisdiction at all.
One Upper Tribunal judge (A) initially refused to accept that he had any jurisdiction at all. Judge B initially refused to hear a separate application because he had the decision – dealt with without any hearing on the merits – of Judge A (which he sought to suggest was determinative). He eventually agreed to hold a hearing. He accepted that he had jurisdiction. He ultimately refused an order – even though all parties agreed to it (this and other case management await permission to appeal from the Court of Appeal).
The point of the story is to air the importance of oral hearings wherever possible – even if now a TWM has to be referred back to court; because in their haste they ignore or misread the law, because of their first impression of the case, or even personal predilections, judges can go wrong – such as by not understanding the law, as in the Upper Tribunal. The net result of my efforts proved unimpressive; but at least two judges now know that an application which both had treated has being without merit – even unlawful – is now accepted by one as having a jurisdictional base. Another parent may yet be saved a few days in jail, while his cases snakes though the Upper Tribunal appeals system (at least if his stay application comes before judge B).
And talking of parents: the vast majority of these cases are dealt with by parties in person: how often will they spot a jurisdictional kink, or a case where a bullying TWM order is applied to them?
Nigel ! Justice is never given one has to take it ! Unfortunately !
And yet the Courts are quite satisfied to issue a TWM finding on a number of claims and throw them out (even though a CofA Judge considered they must have merit), even where one has survived strike out, leave one claim outstanding and still running (to this day), then hit the claimant with a CRO, even though he had no applications refused (no persistence re Kumar) and the claims were properly formulated (by a barrister no less) and on allegations of criminality where the claimant had no criminal record. The initial Judge even admitted his error. Mind you, he has since retired early (for incompetence no doubt) & his replacement covered his mess up for him. There is no justice in the UK.
The reality is that the government is afraid of its misdeeds to come back to haunt them after and to bottle neck the appeals against injustices done at the home ground. Well That is when the appeals will start queuing down the route to Strasbourg. It is a clever tactics , The matter is time taking and makes it easy for the Government of any party at a local level to keep super selling nationalistic agendas and blaspheme Strasbourg, while maintaining a high degree of unfairness in impasse. Thereafter if so required the ‘sovereignty’ factor can always be used as a propaganda to thwart any natural justice coming from Strasbourg. They have learned well from Zimbabwe and Robert Mugabe. That said I think British judiciary will definitely see through the inoculation of political appointees at the King’s and Queens bench let alone immigration Tribunals and Court of Appeals , the game has already started. But the problem is that they do not often hear the people sing ! Now the thing is in all this, whenever there is a crime Cicero said ask – Qui bono – To whose benefit !
All litigants in person automatically doomed then?
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