In PS v Royal Borough of Greenwich [2016] EWHC 1967 (Admin), a judicial review decision handed down on 3 August 2016, Mr Justice Collins expressed dissatisfaction with the volume of supporting material filed by the parties. He reiterated a long standing principle that it was inappropriate for the court to embark upon a detailed analysis of the evidence in judicial review. The significant volume of documentation filed by the parties in this case was, therefore, largely irrelevant and should not have been adduced. This case, together with recent further judicial commentary on this issue, serves as a reminder to practitioners in respect of appropriate and orderly document submission in judicial review proceedings.
Background
The case related to a proposed property redevelopment at Enderby Wharf in Greenwich, London which would feature a new jetty in the River Thames for cruise liners. The defendant council granted the application for the development in March 2012. In March 2015, developers made an application to expand the scale of the proposed development which the council later granted. The claimant, a nearby resident, applied for judicial review proceedings in respect of this decision on the basis that the council had not assessed the effects of the development, including prospective ships’ emissions, on air quality.
Judgment and commentary
Mr Justice Collins dismissed the application. His judgment, however, was particularly notable for its commentary and complaints regarding the volume of supporting documentation which had been submitted by the parties. Justice Collins stated that he had been “burdened with an excess of paper”, the vast majority of which was immaterial. In particular, he observed that:
- The documentation he had to consider consisted of 985 pages.
- Of these, 227 pages comprised statements filed on behalf of all of the parties.
- It is not for the court to decide on issues of fact in judicial review proceedings, save where it is required to analyse whether a defendant failed to consider relevant information or, alternatively, considered immaterial information in reaching a decision (in accordance with the Wednesbury principles, for example).
- It was, therefore, inappropriate for the court to embark on a “detailed analysis” of competing evidence in this case. In particular, the court was not required to subject a council officer’s report to detailed analysis. The court was mindful of recognising that an officer’s report is prepared for a knowledgeable readership (citing R (Fabre) v Mendip DC [2002] 80 PTCR 500). The majority of the various statements and voluminous material, which engaged in a factual dispute, should not have been put before him.
Justice Collins’ comments serve as a reminder to practitioners that parties in judicial review proceedings should carefully consider the evidence they submit to the court, and how it is presented. Parties should be guided by the nature of judicial review, which is not ordinarily intended to be a forum for resolving factual disputes. As Lord Bingham summarised in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, “applications for judicial review…characteristically, raise an issue of law, the facts being common ground or relevant only to show how the issue arises”. Fact-finding is generally deemed by the courts as being best left to the decision making body, which may be better placed to do so in accordance with its statutory duties. The courts should be slow to interfere in this respect. For an example of an exception to this position, 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).
Further recent commentary on document management from the Administrative Court
The judgment was delivered very shortly after Mr Justice Cranston’s reminder to practitioners of good practice for the submission of documents in the Administrative Court and the publication of the Administrative Court’s Judicial Review Guide 2016.
In his brief note of 1 August 2016, Justice Cranston stated that:
- Lodging duplicate documentation with the court leads to delay in processing cases swiftly through the court process.
- Practitioners and parties are reminded of the need to comply with the rules with regard to the submission of documents.
- Practitioners should not lodge hard copy documentation with the court if they have already sent it electronically.
For more information, see Legal update, Administrative Court Office announces pilot scheme for urgent matters before the court to be dealt with expeditiously and Mr Justice Cranston issues note on the submission of documents.
Further, the Administrative Court recently published its Judicial Review Guide 2016, which contains helpful guidance to parties in respect of the filing and organisation of documents. In particular, it directs parties to agree a core bundle of key documents where the documentation exceeds 500 pages. In those cases, “consideration should be given to including only the important and relevant parts of a long document…and not copying the whole of that document” (paragraph 18.3.6). It was consolidation such as this and a focus on wholly relevant documentation which Justice Collins perhaps had in mind. For more information, see Legal update, HM Courts and Tribunals Service publish new Administrative Court judicial review guide.
Relevant case law
In Loreto Grammar School, Re Judicial Review [2012] NICA 1 (Westlaw link), the Court of Appeal of Northern Ireland was similarly disappointed with the parties’ approach to and presentation of evidence. In a surprising step, the court dedicated a section in its judgment to guiding practitioners on the proper organisation of a core bundle. This serves as an extremely thorough guide for practitioners and its relevance is not limited to judicial review. The court issued further guidance in Leeds City Council v Secretary of State for Communities and Local Government [2010] EWHC 1412 (Admin), in which the court was provided with a hearing bundle comprising 2,316 pages. For more information, see Blog post, Court of Appeal rejects legitimate expectation argument and gives guidance on preparing a court bundle.
Conclusion
It is unclear whether Justice Collins and Justice Cranston’s observations reflect deeper concern within the Administrative Court regarding litigants’ current habits in respect of the submission of evidence. Many practitioners will, however, be all too aware of the importance of avoiding judicial criticism and condemnation of their bundles. This prerogative is perhaps particularly acute in judicial review proceedings, the proper order and focus of which is typically a narrow examination of the legality of public authorities’ decision making and not an exercise in findings of fact.
For more information, see Practice notes, Judicial review procedure: a practical guide and Disclosure in judicial review.