Judicial Review Update Andrew Sharland QC 27 September 2018

The duty to give reasons Systemic challenges Introduction The duty to give reasons Systemic challenges The public sector equality duty Bias Irrationality Procedural matters

Duty to give reasons

Duty to give reasons (1): The Court of Appeal Oakley v South Cambridgeshire DC [2017] EWCA Civ 71 PP granted for football stadium in green belt with no reasons in face of officer’s recommendation to refuse Breach of common law duty to give reasons Sales LJ: where as here there is a departure from the development plan, need for reasons especially pressing Elias LJ: More radical. Common law moving towards general duty to give reasons unless there is a proper justification for not doing so.

Dover DC v CPRE Kent [2017] UKSC 79 Duty to give reasons (2) Dover DC v CPRE Kent [2017] UKSC 79 Council approved application for 521 houses against the advice of its own planning officers. No reasons given. If EU law governs (requiring an EIA) there is a duty to give reasons regardless of outcome. However, aggrieved party will only succeed in a challenge if they can show that there are substantially prejudiced by the failure No general common law duty to give reasons when granting permission. If significant and long lasting effect on local community and where the Committee disagreed with planning officer, the common law duty to give reasons should apply. Oakley correctly decided.

Systemic challenges

Systemic challenges R (Woolcock) v Secretary of State for Communities and Local Government [2018] EWHC 17 (Admin) Challenge to system for enforcing council tax whereby defaulters are committed to prison for non-payment Alleged that procedure was systemically unfair Divisional Court dismissed the challenge

Systemic challenges – Woolcock cont. Whether procedure is fair is a matter for the court. An administrative scheme will be open to a systemic challenge if there is something inherent in the scheme that gives rise to an unacceptable risk of procedural fairness Conceptual difference between something inherent in a system that gives rise to an unacceptable risk of procedural fairness and even a large number of decisions that are simply individually aberrant The Claimant must identify the decision under challenge

The public sector equality duty

R (JHRW) v Leicester City Council [2018] EWCA Civ 1551 Applicability of psed to Council resolutions Extent of regard necessary Evidence used to demonstrate due regard has been had- close scrutiny of the debates

Bias

Bias R (Miller) v Heath Service Commissioner for England [2018] EWCA Civ 144 Apparent pre-determination bias Lewis J at first instance concluded no pre-determination CA allowed appeal From outset Ombudsman treated doctors as guilt as charged “Pre-determination arises when a judge or other decision maker reaches a final conclusion before he or she is in possession of all the relevant evidence and arguments.”

Irrationality

R (Gallaher Group Ltd) v CMA [2018] UKSC 25 Equal treatment not a distinct ground of judicial review Substantive unfairness not a distinct ground of judicial review “conspicuous” unfairness adds nothing Focus on ordinary principles of judicial review: irrationality and legitimate expectation

Procedural matters

R (Citizens UK) v SSHD [2018] EWCA Civ 1812 Duty of candour Different to “disclosure” A self-policing duty: “the good the bad and the ugly” Witness statements filed on behalf of public authorities must not deliberately or unintentionally obscure areas of central relevance. There can be no place in this context for “spin” The duty of candour is a duty to disclose all material facts known to a party in judicial review proceedings. The duty not to mislead the court can occur by omission, for example by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact

R (Khan) v SSHD [2018] EWCA Civ 1684 M v Croydon and KN (Afghanistan) lay down three categories of case: (a) cases where a claimant had been wholly successful, whether following a contested hearing or pursuant to a settlement, in which a claimant should normally be entitled to all of his costs; (b) cases where a claimant had only succeeded in part, whether following a contested hearing or pursuant to a settlement, where there was much to be said for making no order for costs; (c) cases where there had been some compromise which did not actually reflect the claimant's claims, where there was an even stronger case for there to be no order for costs courts should not let disputes about costs turn into satellite litigation about the merits of the underlying claim