Our Admin and Public Law seminar, chaired by Sir Robert Devereux, former Permanent Secretary for the Department for Work and Pensions was held on Thursday 4 April, covering the following topics: - 'wearing two hats' - managing the legal risks of conflicts of interest and allegations of pre-determination/bias - information law update session - freedom of information (FOI) cases, General Data Protection Regulation (GDPR) - case law update - judicial review - tactics for dealing with judicial review and case law

1. Admin & Public law Seminar
April 2019

2. Agenda
— ‘Wearing two hats’ – managing the legal risks of conflicts of interest
and allegations of pre-determination/bias – Richard Barlow
— Information law update session – Ros Foster
— Coffee break
— Case law – Will Thomas, Charlotte Harpin & Matthew Alderton
— Judicial Review – tactics for dealing with the Judicial Review & case
law – Tim Edds & Laura Hughes
— Canapes and refreshments

3. Richard Barlow
4 April 2019
“Wearing Two Hats”
Managing the legal risks of conflicts of interest and
allegations of pre-determination/bias

4. Agenda
— Legal principles
— Wearing two hats – the risks in context
– Strategic planning
– Planning permission
– Outside of planning: health and the wider public sector decision
making
— Managing the risks
— Councilor conduct

5. Conflicts of interest
“It is of the last importance that the maxim that no man is to be a judge
in his own cause should be held sacred. And that is not to be confined to
a cause in which he is a party, but applies to a cause in which he has an
interest.”
Lord Campbell (1852)

6. Conflicts of interest – when do they arise?
— Own interest conflicts will arise if the decision maker or someone close
to them has an interest (personal or business) that is adverse or
potentially adverse, to the public interest Wearing Two Hats – the Risks
in Context
— An own interest may include:
– any financial interest
– a personal relationship
– appointment to public or voluntary office
– commercial relationship
– employment

7. Bias, predetermination or disposition?
— Actual Bias
— Apparent Bias
— Predetermination
— Predisposition

8. Actual bias v. apparent bias
“Justice should not only be done, but should manifestly and undoubtedly
be seen to be done”
— Actual bias will always be unlawful
— Apparent bias – most commonly at issue in the judiciary but can apply
more broadly
— To be judged by reference to the perceptions of the “fair minded and
informed observer (Porter v Magill [2010])

9. Predetermination v. predisposition
R (on the application of Lewis) v
Redcar and Cleveland BC [2009]
— Mere predisposition will not be enough
— Appearance of predetermination
created by a councillor voting for a
planning project he has long supported
is not predetermination
— Importance of appearance is limited in
local government context

10. Strategic planning - Manydown
2012 Case:
— Judicial review of local authority’s decisions regarding promotion of a
site as available for development
Currently:
— Ongoing planning application by Basingstoke and Deane Borough
Council and Hampshire County Council with Borough Council as the
planning authority
— Decision to be at Development Control Committee this spring

11. Development control planning
Toogood v Croydon [2018]
— Croydon grant planning permission to
Brick by Brick, a developer wholly
owned by the council
— Application for JR of decision due to
apparent bias
— Application refused and then dismissed
on appeal

12. Planning – bias
Kelton v Wiltshire Council and
others [2015]
— Councillor whose vote decided
planning permission for a
development was a director in a
housing association that had an
interest in the development

13. Planning – bias (cont)
Council for National Parks Ltd v
Pembrokeshire Coast National
Park Authority
— Jan 2004, National Park Authority
resolves to grant outline planning
permission for Bluestone Holiday
Village
— Alleged apparent bias of two
members of Authority who voted in
favour and were members of County
Council

14. Seaport Investments Ltd
— Case involved the application of the SEA Directive and implementation
of the consultation procedure
— The same body was responsible for drawing up plans and as consultant
body
— Court was asked to clarity two rules in relation to consultation
procedure:
– designation of authorities to be consulted; and
– time frames for purpose of consultation
— No requirement of additional authority provided there is “functional
separation”

15. Political predisposition
R (Island Farm Development
Limited) v Bridgend CBC [2006]
— Local authority refused to sell
land to applicant following
election campaign in which the
sale had been a manifesto issue

16. Regulator decision making
Lone v Secretary of State for
Education [2019]
— Appeal against decision to make a
prohibition order taken by Chief
Executive of Teaching Regulation
Authority (TRA) on behalf of Sec
of State
— Appellant claimed apparent bias
as the TRA is the “prosecutor” for
teachers

17. Decisions in health
Royal Brompton v JCPT and another
[2012]
— JR of consultation setting out
preferred options for centres for
paediatric cardiac services, which
did not include Royal Brompton

18. Decisions in health (cont)
British Homeopathic Association v
NHS England and others [2018]
— NHSE cut homeopathic treatments
as a result of consultation
— BHA judicially reviewed the
decision

19. Managing the risks
— Organisational Structure – who is making the decisions and how are
they connected?
— What evidence is being used to make decisions?
— Avoid “Rubber Stamping” consultations/steering group advice –
consider the evidence
— Decision Makers as Regulators

20. Councillor conduct – declaring an interest
— Councillors should act with
integrity; impartiality and
exercise responsibilities in the
interests of local community
— When should an interest be
declared?
— Why should an interest be
declared?

21. Councillor conduct - regulations
— Localism Act 2011
– minimum requirements for local authority code of conduct include
register of interests of members
— Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012
– broad definition of “disclosable pecuniary interests”

22. Councillor conduct – a clear and effective
system?
— Committee on Standards in Public Life
– identifies rules around conflicts as inadequate
– proposal for more robust arrangements
– what might such arrangements be?

23. Any questions?

24. Ros Foster, Partner
4 April 2019
That was the year that was…
CASE LAW UPDATE

25. Themes
— Subject access requests: practical issues and enforcement
— Data sharing
— Youtube and the journalism exemption
— Compensation in DP/misuse/privacy claims
— S170 offence
— FOIA update

26. Subject access requests

27. Holyoake v Candy 2017
— H sought order to compel response to SARs. Litigation was ongoing
between the parties
— H convinced that C had investigated him and had him put under
surveillance
— Held: fact intended to use information disclosed in litigation not a
defence to non-response

28. Continued
— Searches: obligation is limited to what is reasonable and proportionate.
C not required to make a particular enquiry or search private email
accounts unless there was sufficient reason to suspect they contained
H’s personal data
— No confidence or privilege in iniquity: must be “strong prima facie
case” of iniquity/criminality/fraud to displace LPP. Privacy was a
fundamental right but so was LPP
— Court would only inspect privileged materials as a last resort and with
good reason

29. Prosecution: SAR breach
— Magnacrest Ltd fined £300 plus c£1,200 costs for failing to comply with
an enforcement notice issued by the ICO requiring them to comply with
a subject access request
— Relatively fine v cost of compliance… plus still not ordered to respond
to SAR – risk worth taking?

30. Data sharing

31. Cooper v National Crime Agency
— C formerly employed by the NCA. Sacked after arrested and charged
following disturbance in front of a pub
— Significant exchange of information between the agencies. Disciplinary
hearing went first, informed by evidence obtained by the Police. As
NCA would disclose information arising from the disciplinary
proceedings to the Police, C did not participate
— C sought £880k damages in the County Court for breach of DPA

32. Continued
— Held: schedule 3 conditions satisfied (albeit held that disciplinary
proceedings were not legal proceedings for those purposes), allegation
that processing was unfair was not properly argued, allegation of
incompatible purpose not made out against SOCA, disciplinary panel
entitled to see and take into account Police material
— Question: unfettered ability to share between public authorities?

33. YouTube and the journalism provisions

34. Re Buivids (CJEU)
— B filmed an interaction with police officers inside a Latvian police
station and posted them on youtube
— CJEU held that in principle he could rely on the journalism exemptions
in GDPR and the national legislation: sole object of recording and
publication was to inform the public, irrelevant that B is not a
professional journalist
— BUT not all posting on the internet is journalistic activity: sole purpose
must be disclosure to the public of information, opinion or ideas

35. Implications
— Journalists given wide breadth of discretion due to Article 10 ECHR
(right to freedom of expression) and their perceived role as watchdogs
— “Free speech includes not only the inoffensive but the irritating, the
contentious, the eccentric, the heretical, the unwelcome and the
provocative…Freedom only to speak inoffensively is not worth having”
(per Sedley LJ in Redmond-Bate v DPP [2000] HLR 249)
— “As for Article 10, everyone has the right to freedom of expression but
the ones with the greatest need for this constitutionally vital freedom
are the organs of the media” (K v News Group Newspapers)

36. Continued
— Must show that claimant would be likely to succeed in restraining
publication at trial to avoid interim relief (unlike usual balance of
convenience test)
— Bonnard v Perryman: court will not restrain publication even if
defamatory when defendant intends to justify it or make fair comment
on a matter of public interest

37. S26 DPA 2018
— Disapplies significant elements of GDPR in respect of processing for “special
purposes”, including “the purposes of journalism” which is
– Carried out with a view to publication of journalistic material; and
– Controller reasonably believes publication would be in the public interest
• Listed provisions do not apply to extent controller reasonably believes the
application of them would be incompatible with the purposes of journalism
• Publication in public interest: must taken into account special importance
of public interest in freedom of expression and information
• Reasonable belief: controller must have regard to relevant guidelines/codes
of practice (includes BBC Editorial Guidelines)

38. Misuse/privacy/DP claims
— Misuse: court will approach in 2 stages
– Is the C’s right to a private life engaged? (reasonable expectation of
privacy?)
– If so, should C’s qualified right under Article 8 be displaced by some
competing right?
– Interference must be in accordance with the law, pursue a
legitimate aim and be necessary in a democratic society
(proportionality being one aspect)

39. Cliff Richard v BBC
— Held: use of helicopter clearly disproportionate: that level of
interference not proportionate to discharge the Article 10 element and
the public interest
— Sir Cliff had a reasonable expectation of privacy in relation to the
police investigation
— Level of coverage significant
— Awarded £210,000 damages (£190k general, £20k aggravated for
submitting coverage for a TV award). Court identified factors to take
into account when determining quantum

40. Can’t pay we’ll take it away…
— Ali v Channel 5: £10k each for disproportionate and intrusive coverage
of claimants being evicted: naturally distressing, viewed c10m times,
sensationalist
— Quantum subject of appeal: how can they both be right?

41. GDPR
— Recital 146 – data subjects are entitled to “full and effective
compensation” for breach of their rights under the Regulation,
including non-material damage
— Article 82(3): controller or processor must show they were “not in any
way responsible for the event giving rise to the damage” – significantly
harder threshold than having taken such care as was reasonably
required

42. New s170 offence
— Offence for a person knowingly or recklessly
– (a) to obtain or disclose personal data without the consent of the
controller
– (b) to procure the disclosure of personal data to another person
without the consent of the controller
– (c) after obtaining personal data, to retain it without the consent of
the person who was the controller in relation to the personal data
when it was obtained

43. Continued
— Defence to prove –
– Necessary for the prevention or detection of crime
– Required or authorised by an enactment, rule of law or order of a
court or tribunal; or
– In the particular circumstances, was justified as being in the public
interest
Legal burden on defendant to prove the relevant defence on the
balance of probabilities
Purely objective

44. FOIA update
— Vexatiousness – more examples
— FOIA as an alternative remedy to judicial review
— The limits of the exemptions – a few reminders

45. Stuart v Information Commissioner 2018 WL
02322600
— FTT considered section 17(6) FOIA in context of a refusal of the latest
in a series of requests made to the MOD by an ex-serviceman about an
injury he had sustained while on active service, the administration of
medical treatment in relation to that injury, compensation and his
previous complaints
— Section 17(6) provides that an authority does not need to provide a
refusal notice where:
– It is relying on s14(1) FOIA
– It has previously provided the requestor with a notice to that effect;
and

46. Continued
– It would in all the circumstances be unreasonable to expect the
authority to serve a further notice
— FTT first considered whether it was reasonable for the MOD
to have relied on section 17(6). It held that it was, because
of the broad terms within which the previous refusal had
been drafted
— It then considered whether it was satisfied that the MOD
was entitled to rely upon section 14(1) on the facts of the
case

47. Continued
— Held that it was so satisfied given number of requests
made (14), previous subject access requests and extensive
correspondence going back over 10 years

48. Scott v ICO, Kirby Muxloe Parish Council
[2018] 10 WLUK 195
— FTT held that a request for a single surveyor’s report was
vexatious/manifestly unreasonable
— It held that the requestor was acting in concert with 3 other people
who were trying to ‘bring down’ the Parish Council, causing an
excessive burden and considerable distress (a number of staff had
resigned in response)
— It relied upon previous, unchallenged Decision Notices that upheld
reliance on section 14

49. R (oao Good Law Project Ltd) v SoS for Exiting
the EU [2018] EWHC 719
— Campaign group seeking the disclosure of Brexit economic impact
studies – argued it should not have to go through the FOIA process due
to the urgency of its case
— Held: FOIA provided an alternative remedy to judicial review of a
refusal to provide the information and there were no exceptional
circumstances that justified departure from the statutory regime

50. Driver v Information Commissioner [2018] 12
WLUK 639
— Names of exporters with whom a local authority had entered into
settlement agreements after having unlawfully imposed a ban on the
export of live animals was not information obtained in confidence as it
was not information obtained from another person

51. Fearn v Information Commissioner [2018] 12
WLUK 438
— Information about the costs an authority contemplated spending on
litigation with a third party was covered by litigation privilege
— The public interest favoured withholding the information, particularly
as litigation was ongoing and disclosure would weaken the authority’s
position

52. Information Commissioner v Miller [2018]
UKUT 229 (AAC)
— Appeal against finding of FTT that information relating to statistics on
homelessness was not personal data when disclosed was dismissed
— Request had been made to DCLG, which applied its approach to “small
data” (5 or fewer households or individuals) to some of the information
— FTT had rightly focussed on the risk of a person being identified from
the information on the basis of the data and the information in the
hands of the third party

53. Any questions?

54. Coffee break

55. Will Thomas, Solicitor
Charlotte Harpin, Associate
Matthew Alderton, Associate
4 April 2019
Case Law Update:
Decision making in the age of austerity and
political uncertainty

56. R (Hollow) v Surrey CC [2019] EWHC 618
(Admin)
— Judicial Review challenge to approval of 2018-19 budget for schools
and special educational needs and disabilities
— Budget contained eight items of savings. The claimants, who each had
special needs and disabilities, considered that the savings could
significantly reduce the provision for special educational needs

57. The claim
— Claimed:
– irrationality
– breach of the common law requirement to have regard to relevant
considerations
– failure to consult as required by common law
– breach of the public sector equality duty under the Equality Act 2010
s.149
– breach of duty under the Children Act 2004 s.11 and the Children and
Families Act 2014 s.27 to keep provision for special educational needs
under review

58. The decision
— The Court rejected all issues raised by the claimant, noting the
following:
– nothing in the budget compelled any particular decision or bound
the local authority
– common law duty to consult does not arise simply because the likely
effect of a decision was that services for vulnerable group might be
reduced
– PSED and duty to protect children’s welfare had been considered;
– duty to review special educational needs at reasonable intervals not
triggered every time there is a change in provision

59. R (Law Centres Network) v Lord Chancellor
[2018] EWHC 1588 (Admin)
— Judicial review of two decisions by the Lord Chancellor in connection
with provision of legal services under housing possession court duty
(HPCD) schemes – these legal aid funded schemes provide access to
free legal assistance for individuals facing possession hearings
— Decisions related to increasing the size of the geographic areas for
which HPCD scheme contracts were awarded. In many cases, this
resulted in successful bidders having to incur the cost of an agent to
deliver services

60. The claim
— Claimant submitted that the decisions were unlawful because:
– the defendant had failed properly to acquaint himself with the
necessary information on which they should have been based and
had instead proceeded on an unfounded assumption that the
introduction of larger contracts would improve sustainability
– under the new system, vulnerable clients would no longer have
access to "wraparound" services which local law centres were
currently providing but which were not covered by legal aid;
therefore, the defendant had breached the public sector equality
duty under s.149 of the 2010 Act

61. The decision
— Decision quashed, noting:
– decision-maker obliged to take reasonable steps to acquaint itself
with relevant material to enable them to make a lawful decision. In
this case the Defendant, having chosen to consider sustainability,
had made no attempt to carry out any form of financial modelling
before taking the decisions under challenge
– the PSED is personal to decision-maker, who has to consciously
direct their mind to the obligations – there was no evidence that due
regard had been given

62. R (Jewish Human Rights Watch) v Leicester
City Council [2018] EWCA 1551
Appeal of dismissal of claim for Judicial Review of the below resolution
passed by the respondent local authority:
"insofar as legal considerations allow, to boycott any produce
originating from illegal Israeli settlements in the West Bank
until such time as Israel complies with international law and
withdraws from Palestinian Occupied territories."

63. The claim
— Appellant organisation sought to quash the resolution on the basis that,
by passing it:
– the local authority had singled out Israel for different treatment
from that adopted in respect of other countries and failed properly
or sufficiently to consider its effect on the Jewish community
– they had thereby failed to comply with its public sector equality
duty (PSED) under the Equality Act 2010 s.149 to have due regard to
the need to eliminate discrimination and harassment of Jewish
people and the need to foster good relations between those who
were Jewish and those who were not

64. The decision
— Appeal Dismissed
– PSED did apply to local authority resolution in so far as the issue was
whether the local authority, acting by the councillors, had had due
regard to the need to eliminate discrimination, harassment and
victimisation and to the need to foster good relations between
persons who shared a relevant protected characteristic and persons
who did not share it
– Not necessary to refer to terms to PSED, provided it was addressed
in substance and clear from terms of the motion and content of the
debate that the LA had complied - the importance of maintaining
good community relations in the local area had been a major theme

65. Consultation challenges: familiar issues and
common themes
— R (On The Application Of Lyn Buckingham) v NHS Corby Clinical
Commissioning Board [2018] EWHC 2080 (Admin)
— Appeal of R (oao Anna Hinsull) v NHS Dorset Clinical Commissioning
Group [2018] EWHC 2331

66. R (On The Application Of Lyn Buckingham) v
NHS Corby Clinical Commissioning Board
CCG decision to change the provision of health services provided at the
Urgent Care Centre and rename the Centre a “Same Day Access Hub”.

67. The claim
— Three original grounds:
– legitimate expectation that the CCG would consult users or
potential users of the Centre before making the decision and failed
to do so;
– failure to consult or at least involve such users was a breach of the
CCG’s statutory duties; and
– when making the decision the CCG failed to have due regard to their
equality duties
— Plus three additional grounds raised by the interested party

68. The decision
— Court held that the CCG had no good reason for not fulfilling the
legitimate expectation of consultation which it had raised as a result of
earlier statements made and that the situation was one where the duty
to involve applied
— Also found that the equality analysis carried out by the CCG was
insufficient and did not evidence any consideration of the statutory
duty that the CCG had in relation to inequalities

69. Appeal of R (oao Anna Hinsull) v NHS Dorset
Clinical Commissioning Group [2018] EWHC
2331
— Dorset CCG had been considering a number of significant changes to
the configuration of health services in the Dorset area for a number of
years
— This was against a background of funding pressures; changing health
needs and an increasing demand for services
— The decisions taken by the CCG changed the status of Poole Hospital
and involved the closure and consolidation of maternity and paediatric
services

70. The claim
— Raised a number of issues, as follows:
– the sufficiency of the social care workforce
– alternative investigations
– new bed closure test
– travel times
– consultation

71. The decision
— The Court rejected each of the issues raised by the claimant, noting
that:
– CCGs have a wide discretion as to how consultation should be
carried out in the context of service reconfiguration
– When considering travel times, potential impact was assessed as
being 0.6% - if this “does not show a minimal potential additional
clinical risk, it is difficult to know what percentage the CCG would
be entitled to regard as [minimal]”

72. Equality cases
— Lee v Ashers Baking Co [2018] UKSC 49
— R (oao British Homeopathic Association) v NHS Commissioning Board
[2018] EWHC 1359 (Admin)
— Buckingham v Corby CCG
— Hinsull v Dorset CCG
(Note also the emphasis on inequalities-based planning in the NHS LTP)

73. The common law duty to consult
MP v Secretary of State for Health and Social Care [2018] EWHC 3392
(Admin).

74. Background
— Judicial review challenge to the National Health Service (Charges to
Overseas Visitors) Amendment Regulations 2017
— Three legislative changes:
– charges must be paid in advance of treatment
– NHS trusts required to record overseas visitors
– liability to pay charges extended to community services

75. The claim
— No statutory duty but argued that:
– any consultation done must be fair
– there was a legitimate expectation based on past practice

76. The decision
— No need to consult where there are discrete, self-contained issues
— To establish a legitimate expectation of consultation:
– the practice must be clear, unequivocal and unconditional: see per Laws LJ
in Bhatt Murphy at [29]; per Mostyn J in L at [17]
– the practice must be sufficiently settled and uniform to give rise to an
expectation that the claimant would be consulted: see per Stanley Burnton
J in R on the application of BAPIO Action Ltd. v Secretary of State for the
Home Department [2007] EWHC 199 (Admin) at [53]
– there must be unfairness amounting to an abuse of power for the public
authority not to be held to the practice: L at [17] of L and Bhatt Murphy at
[28]

77. Circumventing FOIA: seeking common law
disclosure of documents held by public law
authorities
The Good Law Project & Anor v Secretary of State for Exiting the European
Union [2018] EWHC 719 (Admin).

78. Background
— Sectorial studies held by DExEU and HM Treasury report assessing the
impact of Brexit
— Documents requested on the basis of the common law and Art.10 of the
ECHR and not under the Freedom of Information Act, seeking to rely on
the Supreme Court decision in Kennedy v Charity Commissioners [2015]
AC 455
— Accepted that it could be made under FOIA but claimed the urgency
was too great

79. The claim
— HMG defended the proceedings on the basis that FOIA constituted a
suitable alternative remedy for the claimants’ complaint
— Permission refused on the papers and claimant applied for an oral
renewal hearing
— Witness evidence containing an analysis of the timescales of requests
made under FOIA through the various stages: request, ICO, FtT, UTT,
courts

80. The decision
— Accepted HMG’s argument holding that Parliament, by FOIA, has
created a specialist statutory mechanism for addressing requests for
information held by public authorities
— Not persuaded that the alleged urgency amounted to an exceptional
circumstance which justifies departure from the prescribed statutory
appeal mechanism
— Did not accept that the FOIA mechanism is not capable of dealing with
cases that require expedition, particularly when there was a letter
from the Information Commissioner to say that the matter would likely
be expedited

81. Looking forward…
— The public interest test will still apply
— A case for another day: absolute exemptions under FOIA

82. The trend towards crowd-funding
— In December, the BBC's Shared Data Unit analysed Ministry of Justice
and Legal Aid Agency data since 2011-12 and found:
– around a million fewer claims for legal aid are being processed each
year
– more than 1,000 fewer legal aid providers were paid for civil legal
aid work than in 2011-12
– almost half of all community care legal aid providers are based in
London

83. Some examples from Crowdjustice
Brexit challenges
— £200k raised to argue that the Article 50(2) notification was unlawful
— £190k raised for the Scottish petition that went to the CJEU about whether the
notification was revocable
— £170k to support a parallel claim brought with Gina Miller about the sending of
the Article 50 notification
— £118k raised to challenge the referendum result as a result of the breaches of
campaign finance rules
— £100k raised to send a pre-action letter about the ratification process for the
Withdrawal Agreement
— £60k raised for the common law disclosure JR

84. NHS challenges
— £330k raised for challenge to the junior doctors contract
— £180k raised to challenge the proposed introduction of accountable care
organisations
— £18k raised to challenge the NHS England Consultation on funding for
homeopathy
— £12k raised for a JR challenge to fixed, pre-set population budgets for the NHS
— £12k raised for the Northern Ireland women seeking NHS abortion services in
England
— £10k raised for a JR challenge to the payment scheme created by the
government for victims of contaminated blood

85. Education
— £27k raised to challenge the University of Central Lancashire's decision to
suspend a student for expressing views about Islam in the UK
— £18k raised to challenge challenge Ofsted’s approach to inspection of Steiner
Schools
— £14k raised to challenge the level if funding for children with special
educational needs/disabilities
— £14k raised to challenge a decision of Bath Spa University not to allow a
student to research people who reverse gender reassignment
— £7k raised to challenge the consultation on the academisation of a primary
school

86. Environment
— £54k to challenge the Government’s carbon target
— £38k to challenge the local authority’s decision to allow BBQs on Highbury
fields
— £36k to challenge the issuing of licenses by Natural England for the killing of
certain bird species
— £24k to challenge government policy on fracking
— £16k to challenge decision about the A27 Bypass route
— £15k to challenge the closure of Spitalfields churchyard
— £15k to challenge badger culling

87. Any questions?

88. Tim Edds
Judicial Review:
Case Law Update

89. Overview
This session will look at the courts’ current views in relation to:
— Procedural rigour in public law proceedings
— Standing
— Interim remedies
— Relief
— Costs

90. Procedural rigour
— In recent years, the Administrative Court has become one of the busiest
specialist Courts within the High Court
— “It is imperative that Court resources (including the time of the judges
who sit in the Administrative Court) are used efficiently…bad practices
will not be tolerated”
— The Administrative Court Judicial Review Guide 2018
— https://assets.publishing.service.gov.uk/government/uploads/system/
uploads/attachment_data/file/727626/Admin_Court_JRG_2018_conten
t_v3_web.pdf
— As a result, a number of new cases on this area

91. Procedural rigour (cont)
— Talpada v Secretary of State for the Home Department [2018] EWCA Civ
841
— R. (on the application of National Council for Civil Liberties (Liberty)) v
Secretary of State for the Home Department [2018] EWHC 976 (Admin)d
— R (Nazem Fayad) v Secretary of State for the Home Department [2018]
EWCA Civ 54

92. Procedural rigour – Talpada
— The appellant appealed against a refusal of permission to apply for
judicial review of the secretary of state's rejection of his application
for leave to remain
— LJ Singh opined on the need for procedural rigour in public law
proceedings:
– “it cannot be emphasised enough that public law litigation must be
conducted with an appropriate degree of procedural rigour”
– “Courts should be prepared to take robust decisions and not permit
grounds to be advanced if they have not been properly pleaded or
where permission has not been granted to raise them.”

93. Procedural rigour - Liberty
— Immigration JR of great public importance
— Claimant successfully applied for and granted extensions of time twice to
serve its skeleton argument for hearing on 27 February
— Served it on 8 February 2018, its due date
— Defendants failed to serve their skeleton by 15 February
— Claimant contacted the defendants the day after the deadline had passed,
and the defendants responded stating that they needed until 19 February
— At hearing, Defendant applies for further extension of time to serve
skeleton and to rely on further evidence
— Claimant objects

94. Procedural rigour – Liberty (cont)
Court said:
— Defendant's failure to serve its skeleton argument by the court-
specified deadline was a significant breach of a court order
BUT
— Owing to the great public interest and the claimant's lack of objection,
justice required the extension of time to be granted
BUT
— Defendant to pay claimant costs in application on indemnity basis and
outwith the costs cap

95. Procedural rigour – Liberty (cont)
Further evidence:
— It was in the interests of justice to admit the further evidence so that
court had the fullest and most up-to-date information relevant to the
issues in the case
— It was unsatisfactory that the evidence updating the content of the
official's first witness statement had not been filed earlier nor an
application to rely on it made earlier
— It should have been done in good time before the claimant filed their
skeleton so they had sufficient time to take it into account

96. Procedural rigour – Liberty (cont)
— The evidence should not have been have filed and served after the first
day of the hearing when counsel had almost finished their submissions
— Defendants should pay the costs of the application to admit further
evidence and the costs should fall outside the costs cap

97. Procedural rigour – Fayad
— The applicant was an overseas national who had been issued with a
British overseas passport in 1994. Applied for a new passport in 2012
— Secretary of State neither granted nor refused the application, finding
insufficient evidence to make a decision
— The applicant sought judicial review and damages under the Human
Rights Act 1998, claim rejected in 2014
— Appealed and, on further evidence, appeal compromised on the basis
that he would be issued with a passport

98. Procedural rigour – Fayad (cont)
— SoS ordered to pay costs of appeal, but the parties agreed that a
master should determine the costs below on the basis of written
submissions
— In August 2017, a master ordered that there should be no order in
relation to the costs below. The applicant applied for a review of that
decision, seeking a 46-day extension of the seven-day time limit for
doing so

99. Procedural rigour – Fayad (cont)
Two issues arose:
— Should time be extended?
— Did the parties' agreement to the master dealing with costs on the
papers exclude the court's jurisdiction to review her decision?

100. Procedural rigour – Fayad (cont)
— Should time be extended?
– No, three-stage test in Denton v TH White Ltd [2014] EWCA Civ 906
and R. (on the application of Hysaj) v Secretary of State for the
Home Department [2014] EWCA Civ applied
– A 46-day delay on a seven-day time limit was both serious and
significant, and the applicant had given no real explanation
– Finality of judicial decisions was an important principle, and in the
absence of a good reason for the delay, the just course was to reject
the application to extend time (see paras 21-29 of judgment)

101. Procedural rigour – Fayad (cont)
— Did the parties' agreement to the master dealing with costs on the
papers exclude the court's jurisdiction to review her decision?
– No, any agreement in a consent order had to be objectively construed
from the words used
– Although the parties had purported to exclude the possibility of an oral
hearing before the master, they had not purported to exclude their
mutual right under r.52.24(5) to request a review, R(Sri Lanka) considered
– Since R(Sri Lanka) had been decided, the wording of r.52.24(5) had
changed: any reconsideration by a master of her own decision had to be
on the papers unless a fair determination was impossible without an oral
hearing

102. Standing
Norman v Secretary of State for Housing, Communities and Local
Government [2018] EWHC 2910 (Admin)
— Challenge to grant of planning consent for poultry buildings for 82,500
birds on environmental impact grounds
— Applied to quash a decision of the first defendant secretary of state, by
his planning inspector, to grant planning permission to the third
defendant developer
— Inspector found developer had carried out a robust assessment of
potential odour impacts; and that the odour and noise levels would
cause no significant harm to the living conditions of the neighbours

103. Standing (cont)
— Concluded that the environmental permit was highly material,
addressing as it did issues of noise, odour, emissions and waste
— Claimant a local Councillor and chair of the local Green Party, applied
as a ‘person aggrieved’ under s288 TCPA 1990

104. Standing (cont)
Was the claimant a ‘person aggrieved’?
— Whilst the claimant might have felt aggrieved about the inspector's
decision, that did not make her a 'person [...] aggrieved' within the
meaning of s.288 of the Act
— The meaning to be attributed would vary according to the context,
necessary to have regard to the particular legislation involved and the
nature of the grounds on which an applicant claimed to be aggrieved
— When a person failed to participate in a planning process which led to a
decision they wished to challenge, their non-participation required
readily apparent justification

105. Standing (cont)
— Applicant had simply stepped into the shoes of the local authority and
neighbouring owners, who would have been persons aggrieved but had
chosen not to challenge the inspector's decision
— She was not a "person aggrieved" for the purposes of s.288

106. Scope of relief in JR
Clientearth [2018] EWHC 398 (Admin)(No.3)
— Latest position on series of cases challenging SoS EFRA on the
lawfulness of National Air Quality Plan
— The court had found that the Government’s 2017 national air quality
plan did not comply with Directive 2008/50 and the Air Quality
Standards Regulations 2010

107. Scope of relief in JR (cont)
Clientearth [2018] EWHC 398 (Admin)(No.3)
— Court asked parties to make submissions, inter alia, in relation to …
whether it would be appropriate to grant a continuing liberty to apply,
so that the claimant could bring the matter back before the court if
there was evidence that either defendant was falling short in its
compliance with the terms of the order.
— Garnham J felt appropriate given history of case for the “Court to
exercise a more flexible supervisory jurisdiction than is usual” but
“wholly exceptional”.

108. Scope of relief in JR (cont)
Clientearth [2018] EWHC 398 (Admin)
“The court had to keep the pressure on the Government to ensure that
compliance with the Regulations and the Directive was actually achieved.
It could not realistically monitor the Government's performance itself, but
it could adapt its procedure to provide a quick, efficient and low-cost
means of enabling the claimant to bring the matter back before the court
if there was evidence that the objective in view was not being, or had not
been, achieved.”

109. Scope of relief in JR (cont)
Clientearth [2018] EWHC 398 (Admin)
— Court Granted liberty to apply on notice:
– for further or additional relief;
– in relation to any issue that might arise during the preparation of
the supplementary plan to the English air quality plan; and
– as to the lawfulness of the final supplementary plan
— (Govt published supplement as directed in October 2018 and recently
Air Quality Strategy 2019…)

110. Costs
RL [2018] EWCA Civ 726
— A mother and children challenged a local authority's failure to accommodate
them
— They were not entitled to their costs when accommodation was ultimately
provided and the proceedings settled
— Claim issued after the local authority had started its assessment under the
Children Act 1989 s.17, but before the assessment was concluded
— Settlement had been triggered by the completion of the assessment, not by
the commencement of the proceedings, so it could not be said that the
family was the successful party
— Consider timing of any issuing

111. Costs – interested parties
Lewin [2018] EWCA 554 (Admin)
— Claimant a director of a public company
— Interested parties were an accountancy firm and a partner in that firm
— The Executive Counsel to the Financial Reporting Council, the first
defendant, brought a formal complaint against the interested parties
alleging misconduct in relation to their statutory duties concerning the
financial statements of the company of which the claimant was a
director
— Interested parties sought an order that the claimant pay their costs

112. Costs – interested parties (cont)
— Court held there were no grounds for departing from the usual rule that
there should be no order as to costs as between the claimant and the
interested parties
— The latter had been entitled to obtain separate representation; they
had separate interests
— However, those interests were understood by the Financial Reporting
Council, who included them as part of their own case
— There were no arguments which were referable only to the interested
parties

113. Interim remedies
— Court not granting lightly
— R. (on the application of Dennett) v Lancashire CC
– Court refused to grant an interim injunction to prevent an energy
company from commencing fracking, and refused permission for
judicial review of a local authority's decision over the management
and regulation of the environmental risk involved
— R. (on the application of a School) v Ofsted
– The balance of convenience did not lie in favour of granting an
interim injunction preventing Ofsted from publishing a report about
a school, pending the school's application for judicial review

114. Interim remedies (cont)
— Taveta Investments Ltd v Financial Reporting Council
– It was not appropriate to grant an interim injunction preventing the
Financial Reporting Council from publishing a decision to impose
sanctions on an accountancy firm and one of its accountants

115. Any questions?

116. Laura Hughes
Judicial Review:
Tactics

117. Decision making
Produce template decision-taker’s reports (with suitable legal input based
on specific experience) for types of decisions which are regularly made.

118. Delegation
— Ensure Schemes of Delegation are reviewed to make them clear and
consistent. It is unhelpful if Schemes are not clear as to what level of
decision-taker is responsible for given decisions
— If decisions are delegated to a decision-taker to reach “having
consulted with the Chair/Portfolio holder” etc., ensure that a written
record of the consultation is produced and retained with the other
decision making documents

119. Challenge
— When a pre-action letter is received take legal advice promptly and be
open to the idea of re-taking the decision if advised to. Do not let
organisational pride/concern about admitting to an error get in the way
– reputational harm will be much greater if the JR is successful
— Also more sensible from a costs perspective as there will be no liability
for the claimants’ costs

120. Challenge (cont)
— Do not allow an out of time claimant to persuade you to re-visit or
review a decision taken:
– this is simply them trying to extend their time to reach a decision
– there is unreported authority making it clear that this tactic from
claimants does not require a Defendant to accede to their request

121. Counsel
— Consider carefully whether to instruct counsel at the pre-action stage
— If a case is to be defended and is particularly significant for an
organisation, putting forward the case which will be advanced in court
assists with potentially deferring claimants, and in respect of costs if
the claim is successfully defended
— Once the claim is launched, appoint the best counsel the Defendant is
prepared to instruct

122. Summary grounds
• Keep the summary grounds as succinct as possible – to communicate a
message that the claim is lawful and straightforwardly so
• Remember to argue that the case is totally without merit if there is a
chance that argument will succeed – if it does you will avoid a renewal
hearing
• Think – time, standing

123. Renewal hearing
— If permission is refused on the papers, do not agree to a rolled up
hearing dealing with the renewed permission hearing and the
substantive hearing – this does not save time and cost
— On a weaker case, it sometimes makes sense not to send counsel to the
renewal hearing – where there is a positive decision on the papers
sending representation can simply add to the sense that the claimants
claim has merit (but do send a note-taker)

124. Substantive hearing
— Expect grounds refused permission to be re-introduced and be prepared
to resist them
— Always consider carefully any ‘refinements’ to the claimants case and
what they mean for your case – and resist if necessary
— Take account of the Judge and their preferences

125. Documentation
Make life easy for the Judge and the Court by ensuring the documentation
is properly paginated, clear, indexed, that spare copies are available and
be prepared to do things the claimants should be doing if they do not.

126. In court
— Post it notes!!!
— Client sitting alongside solicitor
— Folders in sub-divided boxes where possible
— Keep your and counsels copies of documents up to date
— Be gracious and assist the other side and the court
— But a little facial drama does not go amiss!

127. Costs
— Where there are interim applications ensure that so far as possible,
when recording time you keep a note of whether it relates to the
application, or the substantive matter, or both
— As Defendant, consider the claimant’s funding and whether you need to
take steps to deal with the question of costs before conclusion of the
matter

128. Questions?

129. Thank you