The High Court’s recent decision in Home Department  EWHC 2873 is a useful reminder of the importance of promptness in judicial review when it comes to the defendant filing an acknowledgement of service and summary grounds of resistance.
So what are the time limits?
Having been served with a claim, the defendant, or any other person, who wishes to take part in the judicial review must:
- File an acknowledgement of service and summary grounds for resisting the claim no later than 21 days after service of the claim form (CPR 54.8(2)(a)).
- Serve a copy of the document on the claimant within seven days of it being filed at the Administrative Court (CPR 54.8(2)(b)).
CPR 54.8(3) emphasises the importance of meeting these time limits, which cannot be extended by agreement between the parties. This means that, as a court order is required for an extension of time, the court maintains effective control over public law claims.
A well-drafted, succinct acknowledgment of service, which includes reasons why the decision-maker came to the decision that they did and why the decision made was lawful, is crucial as it places the judge in a properly informed position at the permission stage to decide (usually on the papers) the issue of arguability. The rules recognise that practical value, which is why there is an obligation on the defendant to file summary grounds in response promptly.
For information on what is required by Practice Form N462, see Practice note, A practical guide to the judicial review procedure: Filing an acknowledgement of service.
Singh concerned applications by the Secretary of State for the Home Department’s (SoS) for extensions of time to serve an acknowledgement of service and summary grounds of defence in each of 20 separate judicial review claims by individuals all challenging asylum, immigration and temporary migration decisions by the SoS. In relation to these claims, the SoS had already been granted at least two and as many as four extensions for filing the acknowledgements of service and summary grounds of defence but had failed to file a response to the claims with promptness.
In Mr Singh’s case, he had served his claim on 12 May 2013. The SoS’s deadline for filing an acknowledgment of service was 12 June 2013 but three requests for an extension of time were made on 12 June, 24 July and 14 August 2013. By 5 September 2013 (when the application for permission was allocated to a deputy High Court judge), no acknowledgment of service had been filed. Therefore, the judge directed that the SoS’s application for extension be set down for hearing, together with 19 other similar cases, where acknowledgments of service had not been filed by the time the applications for permission were considered by the judge (and were some three months overdue).
Although the court was sympathetic to the SoS’s difficulties in dealing with the dramatic rise in challenges to asylum and immigration decisions (for example, 2,500 pre-action protocol letters were received in July 2013), her failure to file acknowledgments of service and summary grounds of resistance meant that some judges:
- Had tried to determine permission without the assistance of an acknowledgement. This resulted in applications taking much longer than they might otherwise and claimants being given permission to proceed in circumstances where they might have been refused leave if the judge had had the benefit of a filed acknowledgement of service.
- Had granted claimants permission to proceed or made an order that, unless an acknowledgement of service was filed by a specific date, then permission would be granted and the claim proceed to a substantive hearing.
Neither approach was ideal given that claims might have been disposed of at the permission stage if the SoS had complied with her obligations under the rules. In addition to the parties wasting time and effort in pursuing cases that had no merit, the court was wasting increasingly precious resources on having to deal with such claims without the benefit of properly argued grounds of resistance.
The High Court’s decision acknowledged the frankness and usefulness of a statement provided by the Director of UK Visas & Immigration, in which he acknowledged that the SoS’s position was wholly unacceptable. The statement, which sought to explain, if not excuse, the delay in filing acknowledgments of service, confirmed that the:
- Number of judicial reviews received was 69% higher in July 2013 than the previous year. Upon investigation, most of those claims were found to lack any significant merit; over 90% of applications for permission had been refused on the papers and over 70% that went on to an oral renewal hearing were refused. Of the 547 refusals of permission on paper in July 2013, 46% (that is nearly half) were described by the judge dealing with the application as being devoid of merit or abusive. However, every claim had to be allocated to a case worker, investigated and a response prepared.
- SoS’s response time was unacceptable but positive steps had been taken to improve the position. These included the short-term use of junior members of the Bar, the employment and training of 60 additional full-time case workers, prioritising cases and identifying those cases which raised identical or very similar issues that could be dealt with by standard summary grounds.
- SoS would take every step to ensure that the timescales set out in CPR 54.8(2)(a) and (b) were met and to minimise applications for extensions of time.
Approach advocated by the court
The High Court pointed out that, in addition to the suffering claimants experienced from the SoS’s failure to deal promptly with their claims, there was a substantial public interest in the finality of administrative decisions and the need for these to be brought, dealt with and, if necessary, determined with reasonable promptness. Although it was not prepared to lay down general guidelines, as each case turned on its facts and some complex cases might warrant a longer period than 21 days even to make an initial summary response, the court indicated that:
- There would be very few cases that required more than six weeks to lodge a summary response.
- The SoS would have to demonstrate compelling reasons for an extension of time. (Lack of resources would not be a compelling reason.)
- The SoS must aim to comply with the requirement of the rules. However, while the measures that had been adopted to speed up the backlog of claims were taking effect, a first application by the SoS in any claim for an extension of time of up to three weeks:
- would not have to be supported by any detailed evidence or grounds; and
- would be treated generously by the court (unless a claimant was able to identify some good reason why an extension was prejudicial).
- In relation to subsequent applications for an extension by the SoS, it would scrutinise the reasons for the delay in compliance and expected a firm promise as to when the acknowledgement of service and summary grounds of resistance would be filed. However, the SoS should be prepared for such applications to fail unless compelling reasons, that were specific to the case, as to why further time was needed were provided.
- The court must remain in control of the management of the case and it would not hesitate to impose sanctions, including costs sanctions, if good reason for delay was not made out on second and subsequent applications.
- Although the cases it was considering related to defaults by the SoS, the same principles applied to claimants.
- The SoS must pay the appropriate fee for every extension (whether the first or subsequent application) and seek the claimant’s views on the extension. Any response received must be filed with the application.
Finally the court pointed out that, if the number of claims continued to rise and the measures that had been put in place to deal with the backlog were not sufficient to deal with the increase, it was incumbent on the SoS to promptly inform the President of the Queen’s Bench Division and the Lead Judge of the Administrative Court of the new problems, the steps that had been taken to address these and the proposed timetable for ensuring that the position was rectified.
What is apparent from the judgment, is the considerable value that a defendant’s acknowledgment of services and summary grounds of resistance provides to the judge who is tasked with considering a claimant’s application for permission to proceed. A defendant should remember that it is an opportunity to show why a judge should refuse permission to apply and ensure that any knockout points or procedural bars to the claim are included. For more information, see Checklist, Defending a claim for judicial review.
Finally, it will be interesting to see whether the proposed reforms for judicial review may have some impact on the number of judicial review applications being made in relation to immigration and asylum decisions. The consultation paper that was published in September 2013 (see Legal update, Consultation on proposals for further reform of judicial review) referred to the increase in the number of judicial review applications (from 4,500 applications in 1998 to 12,400 applications in 2012) although it accepted that much of the growth was in immigration and asylum cases.