Court of Appeal rejects legitimate expectation argument and gives guidance on preparing a court bundle

The recent decision of the Court of Appeal in Northern Ireland in Loreto Grammar School, Re Judicial Review is an interesting one for two reasons. Firstly, it shows that even the judiciary can have diametrically opposed views on whether the particular  circumstances of an individual case give rise to a legitimate expectation. Secondly, the court offered guidance to practitioners on how to prepare a proper core bundle for use by the parties and the court at the hearing. This guidance was prompted by the parties’ producing bundles of documents that were not limited to core documents but included additional documents “for the sake of completeness”.

What gives rise to a legitimate expectation?

On 25 March 2011, the Belfast High Court ruled that representations and actions by the Department of Education (DoE) and the Minister of Education gave rise to a substantive legitimate expectation that Loreto grammar school in Omagh would receive £14.6 million to fund a new school building on the existing site. The DoE’s commitment, which was not subject to any express or implied qualifications, was not fulfilled and the High Court held that the conduct of the Minister and the DoE was unfair and amounted to an abuse of power. The frustration of the school’s legitimate expectation could not be justified by any public interest and the Minister, when taking the decision not to provide the funding, failed to consider the school’s legitimate expectation. 

However, on appeal the Court of Appeal  held that the DoE’s representations and actions did not give rise to a substantive legitimate expectation. It agreed with the DoE’s submission that the Minister’s 2004 pledge to provide the funding was an indication of the DoE’s plan or bona fide intention at the time. It could not be viewed as an unqualified pledge, with a pre-determined outcome, given the:

  • Necessity for the school to satisfy the requirements of an acceptable economic assessment and plan.
  • Execution of the project depended on the existence of funds.
  • Project had to receive final approval before those funds would be released.

As the majority of the case law demonstrates, a  legitimate expectation can only arise:

  • Where there has been a clear and unambiguous representation as to the decision-maker’s future conduct.
  • Where a clear and regular practice exists, which it is reasonable for a claimant to expect will continue.

However, in Loreto, the Court of Appeal considered that the evidence fell short of establishing the type of clear unambiguous representations devoid of qualification that were required to give rise to a substantive legitimate expectation on the part of the school. It considered that the Luton decision, in which the High Court rejected the claimants’ arguments that they had a legitimate expectation that they would receive the necessary funding to deliver the disputed school building projects under the BSF programme, supported the DoE’s argument that no legitimate expectation could arise until the final approval of an application for funding. The Ministerial Statement in Loreto and the various statement and documents that emanated from the DoE fell short of giving rise to a promise and were subject to qualification. Therefore, the school had failed to establish it had a substantive legitimate expectation that was enforceable by legal redress.

For more information on the public law concept of legitimate expectation and the factors that may give rise to a legitimate expectation, see Practice note, Legitimate expectations.

Guidance on preparation of documents for a hearing

What is surprising in this case was the court considered it necessary to provide guidance on the proper organisation of the core bundle. Although what is suggested appears to be common sense, the tips offered are a useful reminder for practitioners: 

  • The papers should be properly organised to assist in the presentation of the case.
  • It is unacceptable practice to bundle all potentially relevant documents into lever arch files, with the court being directed to any documents that become relevant.
  • A core bundle of key relevant documents should be prepared.
  • Documents that have little or peripheral relevance should be omitted and no document should be inserted for the “sake of completeness”. The correct test is relevance, not completeness.
  • If a document subsequently becomes relevant and needs to be inserted into the core bundle, the relevant page (hole-punched and numbered eg “9A” to follow “9”) should be handed into the court.
  • The preparation of the core bundle should be systematic and organised in a logical fashion. Practitioners should apply their common sense and consider whether documents should be presented chronologically. Sometimes, it may make sense for the core bundle to comprise a separate section of, for example, minutes of meetings. The aim is to ensure that documents are placed in an easily understood order ensuring the best presentation.
  • As the core bundle is intended to be the bundle for use by the parties and the court in the course of the hearing, the parties should co-operate to ensure that an agreed bundle is produced. If the parties cannot agree on what should or should not be included, the opposing party may produce their own bundle. However, if possible, this should be avoided and the parties should strive to agree the format of the bundle.
  • Documents in the core bundle should be clearly copied, paginated and indexed.
  • Occasionally, it may be sufficient to copy a relevant extract from a document. However, the full document should be available in court, in case the extract is shown to be incomplete.
  • Although the actual gathering together and copying of documentation is the responsibility of the relevant party’s solicitors, it is counsel’s duty to direct on the format and content of the core bundle and to ensure that it is in a form that enables the case to be properly presented to, and understood, by the court.

Another case in which the judge considered it necessary to comment on the hearing bundle (which in this case ran to 2,316 pages contained in eight lever arch files) was Leeds City Council v Secretary of State for Communities and Local Government also considered it was necessary in his judgment to comment on the hearing bundle (which in this case ran to 2,316 pages contained in eight lever arch files). Again, no core bundle was prepared for the hearing which meant:

  • He had to create his own as the hearing proceeded.
  • His preparation of the case was hampered.
  • He had to interrupt counsels’ submissions as he transferred relevant documents that were being referred to into the core bundle he was creating.

In addition, the judge criticised the way in which the bundles were structured so that each witness statement was followed by the documents that were exhibited. As the documents were long and the witnesses exhibited different parts of the documents, extracts were at different places in the bundle. In his view, it would have been simpler for the exhibits to have been divided up by subjects.

What these judicial comments demonstrate is that careful thought has to be given to the way in which the evidence is presented so that it can be easily understood by the court.

For more information on preparing trial bundles, see Practice note, Trial: preparation: trial bundles.

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