Preliminary Procedural Issues in Judicial Review

JUDICIAL REVIEW INTRODUCTORY SERIES Administrative Law Bar Association, Autumn 2021 SESSION 2: PRELIMINARY PROCEDURAL ISSUES Tim Buley QC of Landmark Chambers and Sandra Akinbolu of The 36 Group

Key duties to remember; Venue (Administrative Court or Upper Tribunal) Outline of CPR Part 54 procedure; Standing; PRELIMINARY PROCEDURAL ISSUES Time limits; Alternative remedies; Cart challenges; Collateral challenges and the exclusivity rule; Remedies, including interim remedies.

KEY DUTIES/ PROPOSITIONS: Judicial review is a cooperative enterprise. Fordham, Judicial Review Handbook, 6thedn, 2012, 10.1: The supervisory jurisdiction works best as a relationship of mutual respect and cooperation between Court and defendant public authority Judges have high expectations of the behaviour of judicial review parties and their representatives, and will expect cooperation with the Court, with each other, and with the process. CPR 1.3 provides that: The parties are required to help the court to further the overriding objective [of dealing with cases justly and at proportionate cost- CPR 1.1] The Good Law Project Ltd, R (On the Application Of) v Secretary of State for Health and Social Care (No.2) [2021] EWHC 2783 (TCC)

KEY DUTIES/ PROPOSITIONS Duty of Candour The duty is to make full and frank disclosure of (i) material facts; and (ii) potential legal impediments to judicial review such as alternative remedy It is an ongoing duty any material changes must be brought to the Court s attention JS v Secretary of State for the Home Department [2021] EWHC 234 (Admin) The duty of candour means that a party's lawyers have a duty to ensure that the judge dealing with the application has the full picture. It does not suffice to provide a bundle of undigested documents, particularly in a document-heavy case (Khan above, paras. 45 to 46). The parties must enable the judge to perceive and be cognisant of all issues without having to read disparate parts of the bundle. It is the duty of claimants to put the pieces of the jigsaw together. They must not expect that a judge will allot time to spotting the matters that need to be considered. Bartulis v Panevezys Regional Court (Lithuania) [2019] EWHC 3504 (Admin)

KEY DUTIES/ PROPOSITIONS Defendant s duties GLD s Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings full and fair disclosure of relevant material Disclosure should rarely have to be ordered by court High Standards of fairness In particular, should provide assistance with factual situations and background Not simply a question of documents Citizen's UK v Secretary of State for the Home Department [2019] 1All ER 416 " public authorities are not engaged in ordinary litigation, trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law."

KEY DUTIES/ PROPOSITIONS Urgency is no excuse R (SB (Afghanistan)) v SSHD [2018] EWCA Civ 215 ; [2018] WLR 4457 - A cautionary tale - Cases should be brought promptly, and on notice wherever possible R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin) Section 18 Administrative Court Guide Practice Direction 54B

Venue (Administrative Court or Upper Tribunal) Since 2013, the following are heard in the Upper Tribunal any application for permission to apply for judicial review and any application for judicial review (including any application for ancillary relief and costs in such applications) that calls into question: i. a decision made under the Immigration Acts (as defined in Schedule 1 to the Interpretation Act 1978) or any instrument having effect (whether wholly or partly) under an enactment within the Immigration Acts, or otherwise relating to leave to enter or remain in the United Kingdom outside the immigration rules; or ii. a decision of the Immigration and Asylum Chamber of the First-tier Tribunal, from which no appeal lies to the Upper Tribunal.

Venue (Administrative Court or Upper Tribunal) Exceptions: i. a challenge to the validity of primary or subordinate legislation (or of immigration rules); ii. a challenge to the lawfulness of detention (unless it is a decision in relation to bail); iii. a challenge to a decision concerning inclusion on the register of licensed Sponsors or any authorisation of such Sponsors; iv. a challenge to a decision as to citizenship under the British Nationality Act 1981 v. a challenge to a decision made regarding accommodation or (support for asylum seekers) of IAA 1999; vi. a challenge to a decision of the Upper Tribunal; vii. a challenge to a decision of the Special Immigration Appeals Commission; viii. an application for a declaration of incompatibility under section 4 of the Human Rights Act 1998; ix. a challenge to a decision which is certified to have been taken wholly or partly in the interests of national security; or x. a challenge to a decision which is certified to have been taken wholly or partly in reliance on information which it is considered should not be made public in the interests of national security.

CPR 54 CPR Part CPR Part 54 54 procedure procedure Practice Directions Administrative Court Guide

Part 54 Key Procedural Points Documents required on filing CPR 54.2 Skeleton Arguments PD54A 14 Palmer & Anor, R (On the Application Of) v Northern Derbyshire Magistrates' Court [2021] EWHC 3013 (Admin) Bundles Essential documents only Electronic bundles now mandatory Agreed Final Orders Urgent Procedures PD 54B

Standing SCA 1981 s.31(3) Court will not normally hear a case unless the applicant/Claimant has sufficient interest in the matter to which is relates Broad Approach direct personal interest responsible pressure group or campaign group company incorporated for the purpose of bringing proceedings Individuals with specific concerns

Standing R (Save Our Surgeries Ltd) v Joint Committee of Primary Care Trusts and Newcastle upon Tyne Hospitals NHS Foundation Trust [2013] EWHC 439 (Admin) Court will consider costs in bringing proceedings R v IRC, ex p. National Federation of Self-Employed and Small Businesses Ltd. [1982] AC 617 Court will usually hear merits of argument before considering whether the Claimant has standing

Standing Sufficient Interest R (Al-Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin) Must be affected in an identifiable way R (Waste Recycling Group Ltd) v Cumbria CC [2011] EWHC 288 (Admin) Must demonstrate some particular interest to show not merely a busybody R v Inland Revenue Commissioners ex p. National Association of Self- Employed and Small Businesses Ltd [1982] AC 617 Walton v Scottish Ministers [2012] UKSC 44

Standing HRA 1998 s.7(3) Must be a victim Lancashire CC v Taylor [2005] EWCA Civ 284 Thus NGOs and activist groups unlikely to be victims, unless organisation (not members) directly affected Eg R (Broadway Care Centre Ltd.) v Caerphilly County Borough Council [2012] EWHC 37 (Admin)

Standing Recent cases of interest JS v Secretary of State for the Home Department [2021] EWHC 234 (Admin) Delve & Anor, R (On the Application Of) v The Secretary of State for Work And Pensions [2020] EWCA Civ 1199 The Good Law Project Ltd v Minister for the Cabinet Office and Public First Ltd [2021] EWHC 1569 (TCC)