ALBA Conference 2019: A Review (Part 4)

2 November 2019 by Conor Monighan

This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.

‘Practice and Procedure Update’ – Chair: Lord Justice Singh; Speakers: Catherine Dobson, Jo Clement, Christopher Knight

Catherine Dobson: Costs in Public Interest Litigation

Sir Rupert Jackson’s 2009 review of costs in civil litigation found that reform was required in relation to judicial review. This was because it was “not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved”. Whilst the government did not take up the proposal for qualified one-way costs shifting in judicial review, it did introduce a scheme for cost capping orders in judicial review. This change was the focus of Ms Dobson’s talk.

Judicial Review and Cost Capping

ss.88-90 of the Criminal Justice and Courts Act 2015 (CJCA 2015) placed cost capping on a statutory footing. Two key criteria laid down by s.88(6) are:

(a) the proceedings are public interest proceedings,

(b) in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings

In R (We Love Hackney Ltd) v London Borough of Hackney [2019] EWHC 1007 (Admin), the applicant brought a challenge to changes to Hackney’s licensing policy. The group was a company created in 2018 to advance the judicial review. It was composed of local residents and business owners. We Love Hackney Ltd applied for a cost capping order (“CCO”) on the basis that it would otherwise have insufficient resources to bring proceedings.

The court ruled, firstly, that the proceedings were not in the public interest. This is because they were essentially a complaint about specific aspects of the local authority’s decision-making process, rather than raising a question of general public importance [34-39]. Ms Dobson noted that this marked a narrower approach to the public interested test in other recent decisions.  In R (Beety) v Nursing and Midwifery Council [2017] EWHC 3579 (Admin), for example, the decision under challenge affected a similar number of people and a CCO was granted (see [18] of the judgment). This demonstrates, Ms Dobson suggested, the uncertainty which currently surrounds the granting of CCOs.

In We Love Hackney, the court also ruled that it would not be reasonable for the company to withdraw its claim for judicial review without a CCO [52]. Although the company itself had limited funds, the ‘key stakeholders’ in the company had sufficient financial resources to fund the litigation [26 – 30]. Ms Dobson again noted that this approach was stricter than in earlier cases. In R (Hawking and others) v Secretary of State for Health and Social Care [2018] EWHC 989 (Admin), which was Professor Hawking’s challenge to plans to restructure the NHS, Cheema-Grubb J did not examine the financial positions of the claimants, but rather whether it was reasonable for them to be exposed to personal financial risk in order to bring the public interest claim [21]. Ms Dobson suggested this approach is better aligned to earlier case law, such as in Lumsdon v Legal Services Board [2013] EWHC 3289 (Admin) (see [13]).

Ms Dobson concluded that cases this year have exposed the failure to implement the scheme recommended by Sir Jackson. Applications are as unpredictable as those previously made under the common law. They are also just as expensive. The respondent’s costs in applying for a CCO was just over £42,000, whilst the applicants in Maugham v Uber London Ltd [2019] EWHC 391 (Ch) faced a bill of £100,000.

Jo Clement: ‘What do I do if something goes wrong?’

Ms Clement examined two matters: (i) relief from sanctions; (ii) applying the ‘highly likely to make no difference’ test.

Relief From Sanctions in JR Cases

The general approach towards relief from sanctions in public law is the same as in most other kinds of litigation. In particular, CPR 3.8 & 3.9 apply. The Court of Appeal confirmed in R (Hysaj) v SSHD [2014] that Denton v TH White Ltd [2014] 1 WLR 3296 applies to judicial review, namely: (1) assess the seriousness and significance of the breach; (2) consider why the default occurred; (3) consider all the circumstances of the case.

Ms Clement noted that this approach is evident in recent public law cases. In R (Fayad) v Secretary of State for the Home Department [2018] EWCA Civ 54, a request to review a decision was filed 46 days late. Due to the length of delay an explanation was required. Although it was suggested that the Civil Appeals Office had told the applicants that the court had no jurisdiction to review the decision, no evidence had been filed and it was hard to see why 46 days were required to work out the correct route. The court therefore refused to extend time to allow the application.

However, on occasion the nature of certain cases may make the court more likely to grant an extension of time. In R (Liberty) v SSHD [2018] EWHC 976 (Admin), two applications were made: (1) for an extension of time for filing a skeleton argument; (2) an application to rely on further witness statements. Though the full reasons for the delay were not sufficiently explained, the court gave an extension of time due to the public interest in the case and the absence of an objection by the Claimant. However, the Defendants were ordered to pay the costs incurred by the Claimant in relation to the application. This was on an indemnity basis and fell outside the costs capping order. In relation to the witness statements, the court allowed the evidence to ensure fairness and again made a costs order.

The ‘Highly Likely To Make No Difference’ Test

Section 31(2A) of the Senior Courts Act 1981 states:

The High Court—

• must refuse to grant relief on an application for judicial review, and
• may not make an award under subsection (4) on such an application,

if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

Ms Clement suggested that lawyers seeking to rely on this provision must provide evidence. Though this is not strictly a legal requirement, in practice it is difficult to succeed without proof; R (Dat) v West Berkshire Council [2016] EWHC 1876 (Admin). The court must “undertake its own objective assessment of the decision-making process, and what its result would have been if the decision-maker had not erred in law”; R (Goring-On-Thames PC) v South Oxfordshire DC [2018] EWCA Civ 860.

Christopher Knight: A Miscellany

Mr Knight addressed the conference on a number of practical matters which had arisen in recent months.

The first was the duty of candour. This requires claimants to provide a “frank disclosure of all relevant facts” in order to assist the court (Cocks v Thanet DC [1983] 2 A.C. 286, 294G). It has been expressed as requiring defendants (generally public authorities) “to set out fully and fairly all matters that are relevant to the decision that is under challenge” (the Treasury Solicitor’s Department’s Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings). This issue recently arose in R. (on the application of Citizens UK) v Secretary of State for the Home Department Court of Appeal (Civil Division) [2018] EWCA Civ 1812. There, a serious breach of that duty was uncovered. After the High Court had originally passed judgment, Citizens UK found undisclosed evidence in other proceedings that was directly relevant to the issues. Asplin LJ emphasised that the duty was a continuing one [178].

Mr Knight also touched briefly on pleadings. The court has emphasised that the cause of action in a judicial review must be properly pleaded, including damages if sought; R (Fayed) v SSHD [2018] EWCA Civ 54. If damages are sought under the HRA, it is necessary to plead how the ECHR principles are met.

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The full papers produced by Ms Dobson, Ms Clement, and Mr Knight (of which this is only a summary) are available here, here, and here.

This post merely reflects the author’s personal interpretation of what was said at the conference. The opinions expressed do not necessarily reflect the views of ALBA, conference attendees, or the UKHRB.

A number of papers from the conference are available here.

Related reading:

• ALBA Conference 2019: A Review (Part 3)
• ALBA Conference 2019: A Review (Part 2)
• ALBA Conference 2019: A Review (Part 1)