High Court gives guidance on the admissibility of expert evidence in judicial review

The High Court has considered the principles applicable to the admissibility of expert evidence in judicial review proceedings, as well as the weight to be given to witnesses’ comments that stray beyond opinion into argument (R (Gardner) v Secretary of State for Health and Social Care [2021] EWHC 2946 (Admin)).

Key points

  • In judicial review proceedings it is not the function of the Court to assess the merits of the decision under challenge. The issue is whether the decision was lawful, not whether it was ‘right’. Evidence not before the decision-maker, such as that of experts relating to the period after the decision was made, is seldom required to resolve that issue.
  • The admissibility of expert evidence will depend on what type of evidence it is. Whilst statements of fact may assist the Court in understanding the context of the decision in question, statements of expert opinion will only be admitted if they were available at the time of the decision, and those amounting to legal argument will generally be given little weight.
  • The Court will try to take a proportionate approach to inadmissible evidence at the interlocutory stage. Parties will not necessarily be required to re-file statements. Instead, the Court may invite them to make submissions at the substantive hearing as to the appropriate weight to be given to particular passages.

Background

The Claimants, the children of two care home residents who died during the first wave of the coronavirus pandemic between March and June 2020, issued judicial review proceedings against three Government bodies challenging their alleged failure to protect care home residents in England over that period: the Secretary of State for Health of Social Care, NHS England, and Public Health England. It was claimed that the conduct of the Defendants breached both Articles 2 (right to life) and 8 (right to private and family life) of the European Convention on Human Rights (“ECHR“), as well as the domestic public law principle of rationality.

The Claimants filed two witness statements given by medical consultants, which contained opinions severely critical of the Defendants. At the interlocutory stage, the issue before the Court concerned the Claimants’ application to file a further, third statement and the Defendants’ cross-application to resist this and to excise a number of passages from the statements already filed. The substantive hearing in the case is scheduled to take place in March 2022.

Decision

The High Court (constituted as the Divisional Court) rejected the Claimants’ application to adduce the third statement, as it consisted entirely of criticisms of the Defendants’ evidence. However, the Court considered it disproportionate to have the Claimants’ other two statements re-filed; passages amounting to argument would instead be given little weight at the substantive hearing, whilst those expressing an opinion on the reasonableness or negligence of the Defendants’ conduct would be inadmissible.

In reaching this decision, the Court considered the principles applicable to expert evidence in judicial review, both in relation to ECHR claims and domestic law grounds of challenge. For these purposes, it did not consider it relevant that the expert evidence which the Claimants sought to rely upon was contained in witness statements, as opposed to expert reports.

The Court explained that whilst evidence of opinion from an expert is admissible with the permission of the Court in ordinary civil claims under Part 35 of the Civil Procedure Rules, the Court is less willing to provide that permission in judicial review proceedings. This difference in treatment was explained by reference to the Divisional Court’s decision in R (The Law Society) v The Lord Chancellor [2018] EWHC 2094 (Admin), which the Court described as “an authoritative review of the law” on this point. Given the function of judicial review is not to assess the merits of the decision being challenged, it is rarely appropriate for the Court to consider evidence going beyond that which was available to the decision-maker, such as that given by experts.

Applying these principles, the Court held that expert evidence of opinion was admissible to the extent that it was available at the time of the decisions in question. For example, a Guardian article written by one of the consultants stating that care home residents should be made to isolate, published in March 2020, was admissible. But a statement that the Government’s failure to do so was negligent, given by the same consultant as a witness in litigation a year later, was not. Expert evidence of fact, namely as to what had taken place in care homes over the first wave of the pandemic was, however, admissible.

The Claimants contended that, even if there were grounds for declining to admit expert opinion as a matter of domestic law, the position was different in relation to the ECHR claims. It was argued that Article 2 in particular mandated closer scrutiny of the facts than under a rationality challenge alone. The Court agreed to proceed on the basis of that assumption at this interlocutory stage of the proceedings. Accordingly, the Claimants were permitted to refer, not just to the material on which the Defendants based their decisions, but to all other material (including expert evidence of opinion) that they could reasonably have accessed. However, the Court held that this did not extend to opinion evidence post-dating the decisions being challenged – admitting such evidence “would become entirely unmanageable“.

Finally, the Court addressed the sections of the three witness statements that were neither opinion nor fact, but argument. These included comments by witnesses as to whether the Defendants’ actions were ‘appropriate’ or ‘proportionate’. In line with decision in R (The Good Law Project Ltd) v Minister for the Cabinet Office [2021] EWHC 2091, the Court held that it would not take an “excessively purist” approach, reviewing line-by-line to remove such comments. It would instead consider submissions from Counsel at the substantive hearing as to the weight to be given to them.

Comment

The guidance on the admissibility of expert evidence in judicial review provided in the case of R (Law Society) v The Lord Chancellor has again been affirmed as authoritative (see our previous e-Bulletin). Whilst expert evidence may be admitted, it is seldom required to resolve the issues in judicial review. This is because the Court’s role is not to determine the merits of the decision, but to assess its lawfulness. To answer that question, material not before the decision-maker, such as expert evidence, is generally not required. Whether it is required and should be admissible will depend on the kind of expert evidence it is – evidence of fact, of opinion, or of argument.

The Court’s decision also indicates that in relation to grounds of challenge brought under the ECHR, claimants may have a greater range of evidence admitted, given the closer scrutiny of the decision those grounds may require.

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High Court finds failure to comply with human rights duties in context of monitoring of pollutant levels

The High Court has found that positive operational duties under the Human Rights Act 1998 (“HRA“) were triggered by the failure of the Environment Agency (“EA”) to address recommendations in a health risk assessment by Public Health England (“PHE“) regarding the operation of a landfill site which operates under an EA permit (R (on the application of Richards) v Environment Agency [2021] EWHC 2501 (Admin)).

Key points

  • Section 6 of the HRA provides that it is “unlawful for a public authority to act in a way which is incompatible with a Convention right”, and that an act includes a failure to act. A positive operational duty can arise where there is a positive duty on state authorities to take reasonable and appropriate operational measures to protect individuals’ rights.
  • In determining whether a positive operational duty under Article 2 (the right to life) of the European Convention on Human Rights (“ECHR“) is triggered, there must be a known, real and imminent risk to life. This can include a reduction in life expectancy. Once triggered, the public authority must take reasonable steps to protect the right to life.
  • In determining whether a positive operational duty under Article 8 (the right to private life) of the ECHR is triggered, there must be a direct impact on the individual’s home, family or private life, striking a fair balance between the individual and community as a whole, and minimum pollutant levels must be met. Once triggered, the authority must take reasonable and appropriate measures to secure rights to private and family life.
  • The public authority will be afforded a latitude of judgment in respect of compliance with positive operational duties, and the Court will not impose its own views as to best policy.

Background

The claimant, Mathew Richards, is a 5 year old boy who lives in close proximity to Walleys Quarry Landfill Site (“WQLS“). WQLS operates under a permit issued by the EA. Mathew was born prematurely and developed lung complications and respiratory problems. Hydrogen sulphide emissions from WQLS prevented his recovery, which would inevitably lead to chronic obstructive pulmonary disease and would consequently significantly reduce his life expectancy. The local community also expressed significant concerns about the impact of the hydrogen sulphide emissions emanating from WQLS on their own health and wellbeing.

PHE, the executive agency of the Department of Health and Social Care, conducted a health risk assessment of the air quality at WQLS. It found that the level of hydrogen sulphide in the air exceeded guideline levels and was not acceptable. PHE recommended that: (1) all measures be taken to reduce off-site odours from the landfill site as early as possible so that WHO guidelines are met, and (2) all measures be taken to reduce the concentrations of hydrogen sulphide in the local area for 2022 to levels below those health-based guidance values used to assess long-term exposure.

The claimant sought judicial review of the EA, alleging that it had failed to discharge its statutory duty under the HRA to protect his rights under the ECHR which are incorporated into English law by way of the HRA, in particular his right to life under Article 2 of the ECHR and his right to respect for private and family life under Article 8. The two critical questions considered by the Court were: (1) whether positive operational duties were triggered under Articles 2 and 8, meaning that the EA would have an obligation to take reasonable and appropriate measures to secure Mathew’s rights to respect for private and family life and to life; and (2) what those positive operational obligations would entail in the circumstances.

Judgment

The High Court held that Article 2 imposes a positive obligation on state authorities to take appropriate steps to safeguard the lives of those in its jurisdiction. This duty requires a legislative and administrative framework to be put in place to protect the right to life.

The Court cited the Supreme Court’s judgment in Rabone v Pennine Care NHS Trust [2012] UKSC 2 (“Rabone“), where the Court held that the trigger for the Article 2 positive operational duty is that “the authorities knew or ought to have known at the time of the existence of a real and imminent risk to the life of an identified individual or individuals“. The real and imminent risk to life must be present and continuing and significant and substantial. Once triggered, the authority must have “failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk“.

It was held that in this case there was a real and imminent risk to the claimant’s life that was significant, substantial, present and continuing by virtue of his development of a condition which reduced his life expectancy, caused by the activity at WQLS, thereby accelerating death. The Court held that severe environmental pollution affecting an individual’s well-being and adversely affecting private and family life can trigger a positive obligation on the state authorities pursuant to Article 8 to take reasonable and appropriate measures to secure rights to private and family life. There must be a direct impact on the individual’s home, family or private life, striking a fair balance between the individual and community as a whole, and minimum pollutant levels must be met. Overall, it was held that the positive operational duty under Article 8 was triggered in this case.

The High Court held that on the facts there was no evidence that the EA had complied with its legal duty. Compliance would require a clear objective and a plan to achieve that objective, and there was no evidence to this effect.

The High Court accordingly made a declaration that the EA must implement the recommendations of PHE in order to comply with its legal obligations. However, the Court declined to find that there was a current breach by the EA of its duties.

Comment

The High Court’s judgment is the first domestic judgment dealing with both Article 2 and Article 8 rights in an environmental context. The Court noted that the majority of similar cases before the European Court of Human Rights are “looking back” cases where the harm has already been done. The Court contrasted the current case which was “in the moment”, with the pollution being a current problem. The judgment makes clear that in such cases the Courts must “step up” to address and enforce the positive operational duties.

The judgment clarifies that a shortening of life expectancy will be deemed a real and immediate risk to life under Article 2 of the ECHR. This is because the relevant risk to life is to be identified with a risk of life ending earlier than it would have but for the relevant failing on the part of the state authority, irrespective of whether death happens immediately or after a time lag (of perhaps several decades if the victim is a child).

Moreover, the judgment makes clear that the lived experience of the victim’s wider local community is relevant in Article 2 and/or Article 8 pollution cases, despite their not being party to the proceedings. It is relevant to establishing as regards Article 8 whether the adverse effects of pollution have reached the “minimum level” necessary to engage the operational duty, and whether a “fair balance” has been struck between the victim’s interest and the public interest. It is also relevant as regards Article 2 to establish whether reasonable steps have been taken by the authority to avoid the risk to life.

Finally, it is notable that the Court declined to find a current breach by the EA. The Court’s reasoning was that there is an “obvious and pressing public interest imperative” that the EA must comply with its legal duties as a matter of urgency“, and that what matters is to provide clarity with regards to what the EA’s legal obligations are and what the EA must legally do.

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Cost implications at the permission stage for those bringing judicial reviews

In a rare intervention on the question of costs, the Supreme Court has confirmed in CPRE Kent v Secretary of State for Communities and Local Government [2021] UKSC 36 that those bringing claims for judicial review and statutory challenges can face exposure to multiple sets of costs at the permission stage.

Key points

  • The court can order that the applicants are required to pay costs of multiple defendants and interested parties at the permission stage.
  • The position is different at later stages of proceedings (or if permission is reconsidered at an oral hearing), where it will be more unusual for interested parties to be able to recover their costs.
  • In all cases it remains true that costs need to be reasonable and proportionate.

Background

The Kent branch of the Campaign to Protect Rural England (“CPRE“) sought to oppose a plan adopted by Maidstone Borough Council (the “Council“). A claim was made by CPRE in which it named the Secretary of State for Communities and Local Government as first defendant, the Council as second defendant and Roxhill Developments Ltd as an interested party.

The claim was made under Part 8 (and Practice Direction 8C) of the Civil Procedure Rules (the “CPR“). The rules applicable to claims made under these provisions are similar to those for judicial reviews brought under Part 54 of the CPR. In both forms of proceedings, there is first a permission stage, as part of which defendants and other parties served with the claim form wishing to take part in the claim should file an acknowledgment of service. If permission is granted, there will then be a substantive stage in which the case is determined.

At first instance, Lang J refused permission for CPRE’s claim and made costs orders in favour of each of the first defendant, the second defendant and the interested party. Each of these parties had filed an acknowledgment of service and a summary of grounds for contesting the claim.

The claimant did not challenge the refusal of permission but did appeal the costs award which had been made. The costs award was initially affirmed by HHJ Evans-Gordon. CPRE was then given leave to appeal to the Court of Appeal, which ultimately dismissed CPRE’s appeal. Giving the judgment of the Court of Appeal, Coulson LJ held that the ordinary rule on costs (whereby a claimant whose claim is refused at an early stage will usually be liable for the other parties’ reasonable and proportionate costs) applies at the permission stage of judicial review and statutory challenges. On this basis there was therefore no need for an additional defendant or interested party to show “exceptional” or “special” circumstances in order to recover their reasonable and proportionate costs.

The Supreme Court granted permission to appeal.

The question for the Supreme Court

Giving the judgment of the Supreme Court, Lord Hodge emphasised that, in line with the approach set out in R (Gourlay) v Parole Board [2020] UKSC 50, the Supreme Court will only rarely interfere with decisions relating to costs, the exception being where the appeal raises a question of law of general public importance. Lord Hodge noted that the Court of Appeal has principal responsibility for monitoring and controlling developments in practice (including in relation to costs). This is because the Court of Appeal hears many more cases so is better placed to assess what changes are appropriate, but also because the Supreme Court cannot respond with the same speed, flexibility and sensitivity as the Court of Appeal.

It was therefore for CPRE to show that the Court of Appeal had erred in law.

Judgment

Lord Hodge held that the Court of Appeal had not erred in law and accordingly dismissed CPRE’s appeal.

In support of its appeal, CPRE sought to rely on the House of Lords decision in Bolton MDC v Secretary of State for the Environment [1995] 1 W.L.R. 1176 as authority for the proposition that, where there is multiple representation, the losing party will not normally be required to pay more than one set of costs. CPRE argued that there is no principled justification for adopting a different approach at the permission stage of proceedings.

However, the Supreme Court emphasised that Bolton was concerned with the costs incurred at a substantive hearing and that it had been decided prior to the introduction of the CPR (which had introduced the acknowledgment of service procedure). On an examination of case law decided since the introduction of the CPR, the Supreme Court found there to be established authority that the procedural innovations in the CPR (ie, the acknowledgment of service procedure) justify an exception from the practice set out in Bolton. That is because, under the CPR, in circumstances where a party (including an interested party) wishes to contest a claim, filing an acknowledgment of service is mandatory (and costs consequences can follow if they do not).

Comment

In light of the Supreme Court decision, it is now clear that interested parties may be able to recover their costs for participating in the permission stage of judicial reviews and statutory challenges, in circumstances where permission is refused and provided that those costs are reasonable and proportionate.

From a claimant’s perspective, this could be viewed as inhibiting access to justice, as claimants may be unwilling to face exposure to multiple sets of costs. There will also be uncertainty in any given case as to how the court will exercise its discretion in this regard.

However, this will be welcome news to interested parties who now have the benefit of clear Supreme Court authority in their favour when seeking to recover their costs for successfully resisting permission in judicial review or statutory challenges.

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Public Law Project: Judicial Review Trends and Forecasts conference 2021

We are delighted to be supporting the Public Law Project again in running its annual Judicial Review Trends and Forecasts conference. This year the conference will take place as a week of online seminars on the theme of ‘accountability and the constitution’.

The sessions will begin on Monday 18 October, and will include a keynote speech by the Rt Hon Suella Braverman MP QC, Attorney General. Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa and James Wood of Herbert Smith Freehills will be among the other speakers.

Sessions will run from Monday 18 October – Friday 22 October. Topics covered include:

  • Top Public Law Cases of the Year
  • Judicial Review of the Regulators
  • Judicial Review and justice during the pandemic
  • Interveners and third parties in Judicial Review

For full event details and to purchase your tickets please visit the Public Law Project website: JR Trends and Forecasts 2021: Accountability and the Constitution – Public Law Project

If you have any further queries or special requirements, please contact the PLP Events Team at: events@publiclawproject.org.uk

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Public Law Podcast: The Judicial Review and Courts Bill

In the latest episode of our Public Law Podcast, Andrew Lidbetter and Nusrat Zar are once again joined by Vikram Sachdeva QC of 39 Essex. They consider the implications of the Judicial Review and Courts Bill introduced into Parliament in July. This podcast follows on from our episode earlier this year which covered the Government’s consultation on judicial review, in particular from HSF’s experience of judicial review across many different sectors. That episode can be found below.

You can read more about the issues discussed in this episode in the following blog posts:

This podcast can be listened to on SoundCloudApple and Spotify and don’t forget to subscribe to the channel to receive updates on future episodes.

We welcome feedback and if you would like us to cover particular topics in the future please use the contact details below to get in touch.

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Government introduces the Judicial Review and Courts Bill into Parliament

On 21 July, the Government introduced the Judicial Review and Courts Bill into Parliament. The Bill was foreshadowed in the Queen’s Speech on 11 May as part of the Government’s aim to ‘restore the balance of power between the executive, legislature and the courts’. The Government’s press release states that the Bill will ‘equip judges with the tools to give more tailored solutions in judicial review cases’. The Government has published a number of ‘fact sheets’ on aspects of the Bill, accessible here, as well as a detailed explanatory note.

As anticipated, the Bill includes provisions for quashing orders to be made subject to conditions, namely to not take effect until a date specified in the relevant order (i.e. suspension of the order) or removing or limiting any retrospective effect of the quashing of the impugned act. Judges will be “empowered” to use these powers at their discretion.

The Bill also provides for the removal of “Cart” judicial reviews(subject to some limited exceptions). Applications for judicial review against a decision of the Upper Tribunal (the “UTT“) to refuse permission to appeal against a decision of the First-Tier Tribunal (the “FTT“) on the basis that the FTT’s decision was affected by an error of law and therefore the UTT’s decision was also so affected are referred to as applications for a “Cart” judicial review. They derive their name from the decision of the Supreme Court in R (Cart) v The Upper Tribunal [2011] UKSC 28. Described as “inefficient” by the Government, the removal of “Cart” judicial reviews follows a recommendation made in the report by the Independent Review of Administrative Law (“IRAL“). The Bill does, however, provide for some limited circumstances in which a challenge can still be brought to a decision of the UTT on permission to appeal. These are set out in Clause 2(4) and include where the UTT has acted in bad faith or in fundamental breach of the principles of natural justice.

The Bill does not provide for clarification on the effect of statutory ouster clauses more generally or on the principles which lead to a decision being a nullity by operation of law. These were topics on which the Government recently consulted (along with the removal of “Cart” judicial reviews and modifications to quashing orders). The Bill’s explanatory note makes clear that the Government has “decided not to proceed with” these proposals following consideration of the IRAL report and responses to the consultation.

The Bill is awaiting a second reading on a date to be announced. With the House of Commons now in recess, this will not take place before Parliament resumes in early September.

Our previous blog posts on this topic can be found here:

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High Court finds apparent bias in contract award decision

The High Court has found apparent bias on the part of the Government in respect of its award of a contract under the Public Contracts Regulations 2015 (the “PCR“) for the provision of focus group and communication support services without public notice or competition during the early weeks of the Covid-19 pandemic (the “Contract“) (R (The Good Law Project) v Minister for the Cabinet Office [2021] EWHC 1569).  The Court found that whilst there was no suggestion of actual bias, the steps taken by the Government in awarding the Contract fell short of the objective test for apparent bias.

Key Points:

  • The test for apparent bias is whether the circumstances would lead a fair minded and informed observer to conclude that there was a real possibility or a real danger that the decision maker was biased.
  • Evidence of personal or professional relationships between the contracting parties is insufficient to establish apparent bias, but it is a factor to be considered when assessing impartiality and independence in the context of public procurement.
  • A claimant may have standing to challenge an individual procurement decision despite not being an economic operator if it has a sufficient interest in compliance with the public procurement regime in that it is affected in some identifiable way by the challenged decision, or the gravity of a departure from public law obligations justifies the grant of a public law remedy.

Background

The judicial review claim related to the award by the Cabinet Office of the Contract to Public First, a public policy research agency, in June 2020 with a retrospective effective date of 3 March 2020. The Contract arose incrementally when Public First, who had originally been engaged for a discrete unrelated task, were asked to redirect their planned focus group to conduct Covid-19 research and carry out further work in response to demand caused by unforeseen developments in the pandemic.

Regulation 26 of the PCR establishes the general rule that there must be a competition for public contracts. Regulation 32 specifies that in certain circumstances contracting authorities may award public contracts without complying with the procurement procedures in the PCR. These circumstances include where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the procedures in the PCR cannot be complied with.

The claimant, the Good Law Project, sought judicial review on the basis of three grounds of challenge:

  1. There was no basis for making a direct award of the Contract under regulation 32 of the PCR.
  2. Even if the award of the Contract to Public First was lawful, the duration of the Contract (six months) was disproportionate to the immediate need in the given circumstances.
  3. The decision to award the Contract to Public First gave rise to apparent bias, in breach of the principle of procedural fairness. The allegations of apparent bias cited “the longstanding and close personal and professional connections” between Public First’s directors and owners, the Minister of the Cabinet Office, Dominic Cummings (the then Chief Adviser to the Prime Minster) and the Conservative Party, the lack of a competition despite the availability of other contract providers, and the high price of the Contract (£840,000) for six months’ work.

Judgment

In respect of the first ground, the Court concluded that the Defendant was entitled to rely on regulation 32 of the PCR in awarding the Contract to Public First on account of the extreme and unforeseeable urgency caused by the Covid-19 pandemic which justified a departure from the usual procedural requirements and time limits.

The Court also dismissed the second ground that the Contract length was disproportionate. The Court noted that at the time no one could foresee the extent or duration of the pandemic, thereby creating a need for the greater flexibility achieved by a longer contract length.

On the third ground, the Court noted that the test for apparent bias is as set out in the Supreme Court decision of Porter v Magill [2002] 2 A.C. 357, which asks whether the “circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger […], that the [decision maker] was biased.”

The Court acknowledged that, having regard to the specialised nature of the public policy and communications research industry, it was unsurprising that those involved might have developed professional and/or personal friendships over the years working within the government departments. It accepted that such acquaintanceships did not preclude Mr Cummings from making a lawful judgment, but stated that it was a factor to be considered in the circumstances surrounding his impartiality and independence in the context of public procurement. The court suggested that it was the fact that these circumstances existed that should have prompted the Government to take careful steps to remove suspicion of favourable treatment, by ensuring that there was a clear record of the objective criteria used to select Public First over other research agencies.

The Court concluded that the Defendant’s failure to consider any other research agency by reference to experience, expertise, availability or capacity would lead a fair minded and informed observer to conclude that there was a real possibility that the decision maker was biased. The Court accordingly made a declaration that the decision to award the Contract to Public First gave rise to apparent bias and was unlawful.

Comment

The judgment in this case reiterates the objective test in Porter v Magill to consideration of allegations of apparent bias. Whilst extreme urgency (as a result of the pandemic or otherwise) can justify the need to act quickly when taking procurement decisions, there remains an overriding expectation that those decisions will adhere to fundamental public law principles. The High Court also referenced regulation 24 of the PCR, which is concerned with the avoidance of actual conflicts, as a useful indicator of the circumstances that might give rise to apparent bias. That provision refers to any situation where relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of a procurement procedure.

The judgment is also of interest in that the Court found that the Good Law Project had standing to bring the judicial review, despite not being directly affected by the decision to award the Contract to Public First. The Court highlighted a number of points in favour of granting standing, including that: the Good Law Project had a genuine interest in promoting good public administration, where there had been no competition there was no unsuccessful bidder who might have challenged the Contract award, and the gravity of the issues raised justified scrutiny by the Court and the grant of a public law remedy. This decision will be seen as a helpful precedent for third parties with an interest in the award of contracts with a significant public interest.

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Referral decision by professional body not amenable to judicial review

Summary

The High Court has held that a decision by a professional body to refer a complaint against a member to a disciplinary board was not amenable to judicial review (R (Hannah) v Chartered Institute of Taxation [2021] EWHC 1069 (Admin)).

Key points

  • The approach taken by the Courts when ascertaining whether an organisation is a public body for the purposes of judicial review is to look at the source and nature of the power being exercised by the body in order to ascertain whether it exercises public law functions, or whether the exercise of the power has public law consequences.
  • If the source of the power is contained in legislation, the body in question generally will be amenable to judicial review. If the source of the power is purely contractual then judicial review will not generally be available.
  • In some cases the Courts have held bodies without any statutory basis to be amenable to judicial review, because it is clear from the context in which they operate that if they did not exist that government would step in.
  • A body is unlikely to be amenable to judicial review where the relationship between the body and its members is purely contractual, and it is a voluntary scheme which members are not required to sign up to.

Background

The Chartered Institute of Taxation (“the CIOT“) is a membership organisation for tax professionals, with over 19,000 members. A tax adviser is not required to be a member of a professional body such as the CIOT, and each member enters into a membership contract under which he or she is obliged to comply with the CIOT’s Bye-laws, Members’ Regulations, Council Regulations and disciplinary rules and is also obliged to accept the jurisdiction of the Taxation Disciplinary Board (the “Board“). It has no general statutory powers.

The CIOT decided in February 2020 to refer a complaint against the claimant, Mr Hannah, to the Board. Mr Hannah sought to challenge the referral by way of judicial review, alleging that the decision was procedurally unfair as he was not able to make representations before the referral was made.

Decision

The Court considered whether the CIOT was amenable to judicial review, and summarised the current approach taken by the Courts with regard to amenability. Judicial review is not restricted to bodies which derive their powers from legislation or the prerogative. If the source of the power is legislation, the body in question generally will be subject to judicial review, but if the source of the power is purely contractual then judicial review will not generally be available. The Court will look at both the source and the nature of the power being exercised to see whether the body exercises public law functions, or whether their exercise had public law consequences (R v Panel on Take-Overs and Mergers ex parte Datafin plc [1987] QB 815). A body will generally be amenable to judicial review if its functions have been interwoven into the fabric of governmental regulation or governmental control, for instance if regulations take account of its decisions.

In some cases the Courts have held bodies to be amenable to judicial review without any statutory basis, because it is clear from the context in which they operate that if they did not exist that government would step in and its functions would be carried out by an existing authority exercising statutory powers (R v Advertising Standards Authority Limited ex parte Insurance Service plc (1990) 2 Admin LR 77).

The Court concluded that the referral function of the CIOT was not amenable to judicial review. It noted that there was no statutory scheme regulating the conduct of tax advisers, that the CIOT scheme was operated voluntarily and its relationship with its members is purely contractual. The CIOT itself is not involved in disciplining its members.

The Court noted that it is in the interests not only of clients and the public, but also of the collective membership of the CIOT, that there is a code of conduct and a disciplinary system to maintain professional standards and reputation i.e. it is advantageous for an agent to be able to promote him or herself as someone with the professional standing and reputation of a Chartered Tax Adviser. The Court found that these features were compatible with the position of a member being the subject of purely private law principles. The Court noted that this conclusion was reinforced by the fact that there is no requirement for any person or body giving tax advice to belong to the CIOT or any other professional body, and the Government had not indicated any inclination to introduce such a requirement. The Court also noted that the Board may receive complaints about members of the CIOT directly from a member of the public, and that there could be no question of such a referral being amenable to judicial review.

Even if the referral to the Board was amenable to judicial review, the Court commented that it would not have been appropriate to quash the decision on the grounds of procedural fairness, not least because the CIOT’s referral was only a preliminary step and did not involve any adverse conclusion that the standards had been breached. It simply started a disciplinary process (the commencement of which would not be publicised) which would include multiple opportunities for Mr Hannah to make representations.

Comment

The judgment in this case reinforces the approach taken by the Court of Appeal in R (Holmcroft Properties Ltd) v KPMG LLP [2018] EWCA Civ 2093 regarding when a body is amenable to judicial review. The Court of Appeal in Holmcroft confirmed that the test is whether the body carries out a public law function, and the circumstances relating to the nature and function of the power are relevant. In Hannah, the fact that the CIOT’s relationship with its members is purely contractual was indicative but not solely determinative of the applicability of public law principles to the CIOT’s decision-making. The Court will focus on whether the body is carrying out a public law function by reviewing the broader regulatory and factual context.

The manner in which the Government interacts with the functions in question will also weigh with the Court, in particular whether the body is woven into the fabric of public regulation or whether, but for the body’s existence, a Government organisation would ‘step into the breach’.  

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Lara Nassif
Lara Nassif
Senior Associate and Solicitor Advocate
+44 20 7466 7506

Public Law Podcast: Government Consultation on Judicial Review

In the latest episode of our Public Law Podcast, Andrew Lidbetter, Nusrat Zar and Vikram Sachdeva QC of 39 Essex consider the Government’s recent consultation on judicial review following the Independent Review of Administrative Law submitted in January.

You can read more about the issues discussed in this episode in the following blog posts:

This podcast can be listened to on SoundCloudApple and Spotify and don’t forget to subscribe to the channel to receive updates on future episodes.

We welcome feedback and if you would like us to cover particular topics in the future please use the contact details below to get in touch.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998

HSF responds to Government’s Consultation on Judicial Review Reform

The Queen’s Speech on 11 May announced a Judicial Review Bill. This followed a consultation on judicial review reform launched by the Government on 18 March 2021 (the “Consultation“) and the publication of the report by the Independent Review for Administrative Law (the “IRAL“) on its review into possible reforms to the judicial review process (the “IRAL’s Report“). Further information on the IRAL review and Report can be found in our previous blog post. This blog focuses on the Government consultation and our response in view of the forthcoming Judicial Review Bill.

The Consultation

The purpose of the Consultation as set out in the Consultation Document is to “complement the analysis presented in the [IRAL’s] Report” and to create an opportunity to consult on some of the proposals it suggested “at an early point in their development“. The questions put forward by the Consultation focus in part on the specific recommendations made in the IRAL’s Report (such as the discontinuance of Cart Judicial Review and the introduction of suspended quashing orders) which the Government agrees with and intends to take forwards. Additionally the Consultation Document sets out further reforms which the Government says there is merit in considering as a means of addressing some of the issues identified in IRAL’s Report.

The key areas in relation to judicial review claims in which the Consultation sought responses included:

  • Remedies (including suspended quashing orders and prospective remedies)
  • Ouster clauses
  • Removal of the promptness requirement
  • Consideration of a ‘track’ system
  • Requirement to identify organisations that might assist in litigation
  • Introduction of a Reply by the Claimant
  • Changes to the obligations surrounding Detailed and Summary Grounds of Resistance

Our Response

In the first section of our response we considered the Consultation’s questions on suspended or prospective quashing orders together and indicated our view that such remedies should only be permitted in exceptional circumstances, if at all. We noted that not only could such measures threaten to weaken existing remedies but they could also dampen the frameworks governing public functions by minimising the consequences of improper decision-making and in some instances depriving people of effective relief.

In relation to ouster clauses our response warned against the use of these to exclude judicial review as we believe it would be highly damaging to the accountability of Government and the rule of law.

The Consultation Document posed a series of questions on the possible removal of the promptness requirement for filing judicial review proceedings in conjunction with potential scope for encouraging the Civil Procedure Rules Committee (the “CPRC“) to offer time extensions to allow for pre-action resolution. We were generally supportive of removing the promptness requirement in our response, noting our belief that the benefits of the promptness requirement are outweighed by those resulting from the certainty that would be achieved by a fixed 3 month period in which to start proceedings. However, we consider that the 3 month period provides consistent opportunities for meaningful engagement in pre-action correspondence and allows for considered advice from practitioners, and therefore we are not in favour of extending the time limit beyond 3 months.

We were sceptical in our response about the need to introduce a requirement to identify organisations or wider groups that might assist in litigation, both because CPR 54.7(b) already partly goes to this, and also because it would be difficult in practice for many parties to identify possible interveners.

The Consultation Document was somewhat unclear in its request for responses on Detailed and Summary Grounds of Resistance but set out proposed changes to the obligations and procedure. We put forward our opinion that it is misguided to suggest that pre-action correspondence is a sufficient substitute for Summary Grounds of Resistance. Nevertheless we noted the role of pre-action correspondence generally in ensuring that the current 35 day limit before the deadline for filing Detailed Grounds of Resistance is well used and thus concluded that there was no need to extend this limit to 56 days.

Conclusion

Our overarching view is that the current mechanism for judicial review and wider administrative law functions well and does not need to be subject to any major reform. Whilst we are supportive of the Government seeking out scope for improvements in judicial review procedure, we encourage continued consultation with experienced practitioners for any significant proposed changes given the potentially wide-reaching implications for access to justice and the rule of law.

The Queen’s Speech to both Houses of Parliament on 11 May 2021 included a reference to a Judicial Review Bill in the context of the Government seeking to ‘restore the balance of power between the executive, legislature and the courts’. It remains to be seen what the Government’s next steps will be in respect of the proposed content of the Bill and any process of consulting on it.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998