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Court provides useful case management observations on the filing of evidence in judicial review applications

For judicial review practitioners, R (London College of Finance & Accounting) v Secretary of State for the Home Department [2015] EWHC 1688 (Admin) provides some useful case management observations on the filing of evidence in judicial review applications.

Brief facts

The claim, which was rejected by the court as not being sufficiently arguable to justify the grant of permission, involved a challenge to the defendant’s decision to suspend the claimant college’s Tier 4 Sponsor Licence. That licence, which had been granted to the claimant in 2009, enables an overseas student to enter the UK to study full-time (provided they demonstrate their English language ability by passing an approved English test) and will last for four years unless it is revoked or surrendered if the Home Office believes that the sponsor poses a threat to immigration control.  In 2014, the claimant’s licence was suspended following the discovery that a number of students at the claimant college had fraudulently obtained their English language certificate, and concern over the claimant’s duties in sponsoring 54 of the students who had cheated.  After the suspension of its licence, the  claimant issued proceedings challenging the defendant’s decision to suspend, followed by a further challenge of the defendant’s revocation of the licence. The matter was listed as a “rolled-up” hearing for determination of permission with application to follow (if permission was granted).

Case management issues

Before considering the application, the court had to deal with the litigation skirmish that erupted between the parties concerning the timing, admissibility and relevance of a bundle of new material on which the claimant wished to rely in support of its claim. That new material, which comprised a lever arch file of examples of academic course work undertaken by a number of the students, had been served on the defendant two working days before the hearing with no warning from that the claimant.  Upon receipt of this additional material, the defendant had written directly to the court with an application seeking urgent pre-hearing relief namely:

  • A strike out of the entire claim under CPR 3.4(c).
  • A direction refusing the claimant permission to file the material and/or an adjournment or vacation of the forthcoming hearing.
  • A direction that the hearing be used for the purposes of permission only rather than as the listed rolled-up hearing.

In the absence of any representations from the claimant on the defendant’s alternative paper applications, the judge appointed to hear the case declined to accede to any of the defendant’s alternative applications on paper but informed the parties that he would deal with the late filing of evidence as a preliminary issue at the outset of the case.

What is apparent from the judgment is that there had been previous case management breaches by both parties (although the judge commented that the defendant’s breaches were less serious than those of the claimant).  A first attempt at a rolled-up hearing of the claim before a different judge in April 2015 had been ineffective given the claimant’s failure to file a trial bundle, skeleton argument or bundle of authorities on time. Further, at the subsequent hearing  before Cobb J, the claimant had failed to provide the authorities’ bundle on time and when it was provided it was deficient.

In relation to the late filing of the coursework evidence, the claimant explained that it had not been aware of the potential significance of the coursework until the handing down of a judgment in another case, R (Cranford College) v SSHD [2015] EWHC 1090 (Admin); only then was it  aware that a suspicion about non-compliance which had not been allayed by the college could justify its licence being revoked. However, it was apparent that:

  •  In June 2014, the defendant had put the claimant on notice that it had to allay the defendant’s suspicions that the students had cheated in the English language tests by providing coursework.
  • The defendant’s skeleton argument for the ineffective April court hearing had flagged up this gap in the claimant’s evidence, which material could have been filed by 23 April 2015 (the final date on which the claimant was permitted to file its final evidence).

The defendant opposed the late admission of the additional lever arch file of material on the basis that:

  • There had been no meaningful opportunity to consider it before the hearing.
  • It would be unfair if the material were to be taken into account, given its late service.
  • There had been repeated failures by the claimant’s solicitors to comply with case management directions.

Despite the defendant’s arguments against admitting late evidence, the court decided that it should receive the file of material but consider it only if, or when, required to do so and then decide (if at all appropriate) whether (and if so on what terms, and for what purpose) it should be formally filed in the proceedings. In adopting this approach, the court indicated that it was taking a practical stance in relation to the evolution of the claim and the evidence. However, the court was clear that the preliminary issue in relation to the filing of late evidence could have been avoided if a few points had been observed.

  • CPR 54.16 could not be clearer. It provides that no written evidence may be relied on unless it has been served in accordance with any rule or direction of the court or the court gives permission. This rule must be faithfully and strictly observed.
  • Specific orders had been made in relation to the filing of evidence in the claim. Orders, including interlocutory orders, for the filing and service of evidence must be obeyed and complied with to the letter and on time.  Court orders are not “preferences, requests or mere indications;  they are orders” and there is a public interest in enforcing their compliance, particularly where the breach is serious and/or significant.
  • Any party in a judicial review claim who seeks to adduce evidence outside the parameters of CPR 54.16 is under an obligation to apply to the court to adduce that evidence or, where relevant, for a variation of the order granting permission to file evidence. A person who finds that he is unable to comply with the time limits in an order should apply for an extension of time before the time for compliance has expired.
  • If it is possible and practicable, any application for permission to rely on new evidence should be determined before the substantive listed hearing, so that the parties and the court know where they stand and what they have to read.
  • If it is not possible or practicable to make a decision on the admissibility of the new evidence before the hearing, the court may have to consider converting the substantive or rolled-up hearing to a case-management hearing; costs orders may follow.
  • In order to promote the efficient and proportionate conduct of litigation, parties are not merely required to comply with the rules and court orders, they are also obliged to co-operate with each other.
  • Within the framework of the CPR, the Administrative Court retains powers to manage its cases flexibly and in accordance with the overriding objective. In this regard it will ensure that no unfairness is caused to the parties.

Those acting for parties in judicial review claims would do well to have the above principles of good practice in mind to ensure that the litigation proceeds in a timely and cost-effective manner. As the court noted in this case, the late filing of evidence had raised both the temperature and probable cost of the litigation and was an unwelcome diversion from the main suit.  For more information on evidence in judicial review proceedings, see Practice note, Judicial review procedure: a practical guide.

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