The decisions of the Administrative Court often provide judicial review practitioners with useful tips on good practice in judicial review (or how not to pursue or defend a judicial review claim). We set out below some recent cases in which courts have raised important principles in their judgments.
Although the giving of oral evidence in judicial review is exceptional, a defendant faced with a judicial review challenge should be live to the allegations that are made in a claim and consider how the case needs to be tried in the light of those allegations. That is particularly important if there are issues that can only be tested through oral evidence. In Patel v Secretary of State for the Home Department  EWCA Civ 654, the Court of Appeal allowed the appellant defendant’s appeal against a decision of the High Court in which the defendant was ordered to pay the claimant £125,000 by way of damages for false imprisonment. Having being given liberty to file further evidence at a directions hearing, the defendant only provided perfunctory answers to questions that were raised to explain the circumstances in which the claimant had been interviewed by immigration officers and therefore the case was decided by the High Court judge on the papers. However, the Court of Appeal was clear that since the defendant’s officers were accused of acting dishonestly and maliciously, they should have been called as witnesses to enable the judge deciding the matter to have the benefit of their cross-examination (see Legal update, High Court judge should not have made findings that he did on the basis of the evidence before him in judicial review proceedings (Court of Appeal)).
In connection with the filing of evidence, the High Court in R (London College of Finance & Accounting) v Secretary of State for the Home Department  EWHC 1688 (Admin) provided some useful observations on the filing of evidence in judicial review applications (see Blog, Court provides useful case management observations on the filing of evidence in judicial review applications).
Duties to the court
In R (Midcounties Co-operative Ltd) v Forest of Dean District Council  EWHC 1251 (Admin), (see Legal update, High Court gives guidance on minimum requirements for public authorities prevented from defending themselves in judicial review claims for financial reasons), the High Court considered the question of the duties that a public authority (a local planning authority) has to the court if it decides not to defend judicial review proceedings. What was particularly unusual about this case was that the planning authority did not concede the judicial review claim but decided, for financial reasons, not to defend the judicial review proceedings and left the interested party to defend its decision. The court in a postscript to the judgment commented on the fact that the local planning authority’s position could lead to a tension with certain fundamental aspects of the way in which judicial review proceedings are conducted.
As is well established, judicial review litigation is not to be conducted in the same way as ordinary civil litigation: not only because there are specific provisions in the CPR 54 which govern judicial review but because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. Since the Court of Appeal decision in R v Lancashire County Council, ex p. Huddleston  2 All ER 941, a public authority defendant in judicial review proceedings has a duty of candour and co-operation to assist the court in understanding the authority’s decision-making process and to deal with the issues fairly, given that the authority acts in the public interest, and not merely to protect a private, commercial interest. In the judge’s view, a defendant public authority, which finds itself in the position where, for financial reasons, it cannot defend its own decision in judicial review proceedings (particularly where it cannot file a skeleton argument or make oral submissions at a substantive hearing) should consider whether:
- It has complied with its duty of candour and co-operation, by disclosing all relevant documents.
- Its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding the authority’s decision-making process and to deal with the claim for judicial review fairly.
- An acknowledgement of service, with summary grounds of resistance, should be filed even if only in outline form, so that at least the gist of why the authority maintains that its decision is correct in law is explained.
- A representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so.
Further issues the High Court has considered which we have covered in previous blogs, include:
- In Home Department  EWHC 2873, the importance of promptness in judicial review when it comes to the defendant filing an acknowledgement of service and summary grounds of resistance (see Blog, High Court highlights the importance of promptness in filing acknowledgements of service in judicial review).
- In R (Public and Commercial Services Union) v Minister for the Civil Service  EWHC 2556 (Admin), the approach the court will take to specific disclosure in judicial review which, following the decision of the House of Lords in Tweed v Parades Commission for Northern Ireland  UKHL 53, is that an order will be made if the circumstances of the case require disclosure (see Blog, Applications for specific disclosure in judicial review).