ALBA Introduction to - PowerPoint Presentation

ALBA Introduction toJudicial Review 2017 Preparing a case for judicial review Zoë Leventhal Matrix Chambers

INTRODUCTION - topicsPre-action protocolAlternative dispute resolution Cost capping orders Decision to be reviewed Appropriate defendant(s) Interested parties / interveners Claim form – N461 Evidence, bundle & authorities Where to issue Urgent consideration and interim relief – N463

Nature of judicial review claim process Key point to note is the ‘front-loaded’ nature of the process Pre-issue preparation as a claimant involves much of the work usually postponed til later – detailed legal argument, evidence To get permission you need to present the court with i) a well-argued claim, supported by ii) a well-organised and thought-through bundle (so far as time allows)

1: Pre-action protocol : introductionSee MoJ websiteCourt expects parties to have engaged in pre-action correspondence in attempt to avoid litigation, which should be a last resort Opportunity for both parties to explain positions and prospective defendant to reconsider its position Important : court “must have regard” to non compliance on costs (where protocol applies)

Claimant: the letter before claim (1)Standard form recommended at Annex A Letter (often “PAP”) must: Set out details of C and D & reference details for both parties, legal advisers Identify matter/decision which is being challenged Spell out the issues in the claim – date, details of decision, a brief clear summary of facts and an explanation of why contended to be wrong Aarhus, if it applies Action defendant required to take (important)

Claimant: the letter before claim (2)Letter must also include:Details of any interested parties (and a copy of letter sent)Details of any information sought – fuller explanation, etc Details of any documents / disclosure (why relevant/necessary) Address for reply and serve Proposed reply date (usually 14 days – can be abridged/extended) Claim should not normally be issued until date passed (but NB below)

Defendant’s response Standard form recommended at Annex BThe letter should:Provide where appropriate a fuller explanationIndicate whether claim conceded/defendant whole/part and basis for position taken clearly /unambiguously Deal with disclosure/reasons why not provided Copy to interested parties (+ others not yet named)

Pre-action protocol: importanceNot a tick-box exerciseA well-composed letter can persuade a sensibly advised defendant to concede (saving time and cost)Likewise, a well drafted response can cause the claimant to rethink and/or consider dropping obviously weak grounds Court “must have regard” to non-compliance on question of costs – recent case law supports this

Pre-action protocol: limits Not appropriate/mandatory where functus officio e.g. statutory tribunal (but NB in some cases still worthwhile)Urgent cases (e.g. removal directions) May not be appropriate where one of shorter time limits applies – e.g. 6 weeks for planning JRs. Should still attempt to comply as far as possible but normal costs sanctions unlikely to apply in the same way Does not affect the time limit for issue. Alth can be a sufficient reason for delay/extension of time, no guarantee. Prudent course = issue and then stay if necessary for ADR etc

Pre-action protocol - examplesE.g. R (William Kemp) v Denbighshire Local Health Board [2006] EWHC 18 (Admin): C succeeded in obtaining funding of nursing home costs but because had failed to comply, no order as to costs because D might have reviewed position on receipt of PAPR (Ewing) v OPDM [2006] 1 WLR 1260 – if C skips, C may pay higher costs of AoS; if D fails to respond, may not obtain his costs at permission stage E.g. Aegis Group v IRC [2005] EWHC 1468 (Ch): C discontinued proceedings but D had failed to reply to initial PAP letter for almost 2 months – D only obtained 85% costs

Pre-action protocol: key authoritiesR (Bahta) v SSHD [2011] EWCA Civ 895 – C ordinarily entitled to costs if obtains relief after concession (despite Boxall). Importance of compliance with protocol reemphasised M v Croydon [2012] 1 WLR 2607 (Lord Neuberger): …“ defendants sometimes concede claims in the Administrative Court simply because it is not worth the candle fighting the case, or because the claim is justified on a relatively technical ground” , but “the defendants should make up their mind to concede the claim for such reasons before proceedings are issued. That is one of the main purposes of the Protocol, and, if defendants delay considering whether they should concede a claim, that should not be a reason for depriving the clamant of his costs”

2: Alternative dispute resolution (ADR)Protocol expressly refers to need to consider ADR where appropriate (para 3.1) and potential consequences in costs of not doing so E.g. discussion/negotiations, complaints procedures, ombudsmen, mediation But recognises that no party can or should be forced into ADR Value is that can encompass the substantive/merit debate which is often outside scope of JR

2: Alternative dispute resolution (ADR) (cont..)Court of Appeal in Cowl v Plymouth CC [2002] 1 WLR 803 – ADR should be routinely considered by legal representatives (and suggested in pre-action protocol ) And see Laporte [2015] EWHC 371 – successful D only 2/3 costs because had refused ADR without justification Recent cases in the paper re Court insisting on proper use of ADR process: Zahid & others v University of Manchester & others [2017] EWHC 188; Glencore Energy UK Ltd v Revenue and Customs Commissioners [2017] EWHC 1476

3: Cost capping orders (CCOs)– the principlesi.e. an order that claimant pays capped level of costs even if loses New statutory provisions: ss 88-90 CJCA 2015 in force for claims commenced after 8 August 2016 Plus new CPR 46.16-19 & CPR PD46.10 No CCO can now be granted (except Aarhus) save in accordance with these sections

CCOs: key provisions s 88-90 (changes)CCO can only now be granted after permission has been grantedMust be in accordance with relevant procedure Reciprocal cap must be imposed Court must be satisfied that: Public interest proceedings i.e. general public importance, public interest requires the issue to be resolved, and proceedings are an appropriate way of resolving it (and see s 88(8) on significance etc ); Without CCO, JR would be withdrawn (or not participate) Reasonable for that to occur

CCOs S 89 – court must have regard to financial resources and extent to which C will benefit from JR (inter alia)New procedure (CPR 46.17):By application notice Supported by evidence dealing with requirements of above + summary of financial resources (see PD46.10) + costs likely to be incurred. Beety v Nursing Midwifery Council 14 June 2017 – broad approach to public interest proceedings

CCOs – further points to note: Aarhus NB new specific costs rules under CPR 45.41 for environmental JR claims re the Aarhus Convention and 2017 changes In brief, C’s costs capped at £5k if individual or £10k D’s costs capped at £35k C must assert this in claim form and cap will then apply unless D objects (NB indemnity costs consequences of losing this argument) Venn v SSCLG (CA) on breadth of environmental claims covered But Court can now vary these under 2017 changes – see Friends of the Earth case Sept 2017

4: Identifying the decision to be reviewedEnactment, decision, action or failure to act about which complaint is made. Usually obvious but difficulties can ariseE.g. continuing failures or a series of decisions. Usually most recent decision is appropriate target but bear in mind may be impermissible collateral challenge to earlier decision (for which out of time) or simply a restatement of earlier position (e.g. R (Louden) v Bury School Organisation Committee [2002] EWHC 2749 (Admin)

5: Identifying the appropriate defendantAgain rarely problematic – the body which has taken the relevant decision or has acted or failed to act in a certain wayOccasionally difficulties can arise where various different bodies are involved – pre-action protocol correspondence is useful in resolving such issues

6: Interested parties“a person [other than the C and D] directly affected by the claim for judicial review: CPR 54.1(2)(f)Must be included on the claim form: 54.6(1)(a) PD54 explains e.g. that the prosecution must always be named as an IP where the JR is of the magistrates’ courts or crown courts Other examples: developer who is beneficiary of planning permission being challenged, service user of community care services in dispute between 2 LAs, licence holder Also possibly appropriate gov depts /other groups (but proceed cautiously). Court will consider notifying crown in s 4 HRA cases: PD19A para 6.1

7: IntervenersCPR 54.17: court has power to allow any person to apply for permission to file evidence or make oral/written submissions in relation to a claim – i.e an intervenerUsually once permission is granted but often write an introductory letter pre-permission See British American Tobacco v SS for Health [2014] EWHC 3515 Interveners now subject to risks on costs under new CJCA 2015: s 87 (if not of significant assistance to the court or act unreasonably, and cannot get costs order in favour save exc..)

8: Claim form : introductionPart 8 procedure modified by Part 54: N461 formKey points to consider:Date of decision (s 3): if continuing failure – “ongoing” Explain why non-compliance with PAP if so Issues under HRA 1998 – see CPR 16 PD para 15 for specific information to be included (precise details and relief sought) Relief sought (s 7) must be specified including interim relief. Err on side of caution (use useful catch all “such other relief….”) Other applications (s 8): anonymity, time for AoS , disclosure, PCO

Claim form: statement of facts and groundsGenerally better to have all in one document and use witness statements sparinglyTips:State what case is about in first paragraph Summary of facts as concisely as possible (but …) Legal framework Grounds of challenge Clearly identify issues of law Anticipate/deal head on with any delay objection ADR/PAP Duty of full & frank disclosure on claimants – material facts and known impediments to judicial review (continuing duty) Would outcome have been substantially different? New amended s 31 SCA

Statement of facts and grounds: heed the adviceTry to avoid “the overloading of a case with hopeless points [which] simply operates potentially to devalue points which otherwise might be made to appear arguable” R (Naing) v IAT [2003] EWHC 77 (Admin) See also R (Brookes) v Secretary of State for Work and Pensions [2010] 1 WRL 2448: “An application for judicial review is an application to review one or more identifiable decisions on grounds of error of law. Both the decision and the alleged error must be identified with particularity in the claim. It is not acceptable for a claim for judicial review to consist of narrative, of unfocused complaint and of general reflections (good or bad) upon the nature of the legislation in question ”.

9: Evidence, bundle and authorities (1)Bundle must include (PD 54A at 5.6):Any written evidence on which C reliesA copy of the order the C seeks to have quashed A copy of the decision under challenge and any other documents on which the C seeks to rely A copy of any relevant statutory material (best also to include key authorities) A list of essential reading with page references

10: Evidence, bundle etc (2)“Other documents” includes PAP and other correspondence. NB duty of full and frank disclosure.But don’t overburden the court : “initially only what is clearly relevant and material” ( R (McCarthy) v Basildon [2008] EWHC 987) Think about how bundle is presented and how easy key documents are to find. Core bundle?

10: Where to issue?Regional Administrative Court centres: Cardiff, Birmingham, Leeds and Manchester.Generally appropriate to issue and/or transfer case to region with which the claimant has the closest connection (although see PD 54D para 5.2 for various relevant factors)

10: Where to issue (cont …)Excepted classes of claims such as control orders, terrorist cases and those to be heard by the specialist “planning court” must be issued in London (PD54D para 3.1)NB New admin court guide Chapter 6.6 – may be justification for issuing in different venue – explain in s 4 of claim form Now must issue an immigration JR in the Upper Tribunal, unless falls within exceptions in the LCJ practice direction (e.g. detention, trafficking – see details in paper)

11: Urgent consideration and interim relief Form N463 if C has urgent application for interim relief or requires an expedited timetable. Form requires C’s advocate to: Set out reasons for urgency Set out a proposed timetable Set out what interim relief is sought and why Provide a draft order for interim relief Demonstrate that the form has been served on defendant and interested party NB further explanation given if court being asked to consider within 48 hours

11: Urgent consideration cont…May be granted on papers or at an oral hearing (often with permission)There is an out of hours service for exceptional urgency See new Admin Court guide July 2016 Chapter 16 on urgency. Only if genuinely urgent and procedure must be followed especially if 48 hour process being requested

Concluding thoughts …DO : your thinking at the beginning, promptly and focus on clear errors of lawDO: take time over the PAP and bundleDO: think about whether litigation is necessary or is there an alternative? Is JR really in your client’s interests? DON’T: Put unnecessary material in the bundle; Expect the judge to wade through and figure it out. THINK: Are my grounds clear enough to get permission even if it’s case no 12/12?