Case note – CPR Part 18 Requests for Further Information in judicial review proceedings: R (KBL) v Secretary of State for the Home Department and ors [2022] EWHC 1545 (Admin) and R (JZ) V Secretary of State for the Home Department and ors [2022] EWHC 1708

21 July 2022

CPR Part 18 gives power to the court to order a party to proceedings to provide further information, where this is necessary to resolve disputes. Applications for orders under CPR18 are very rare in judicial review cases but two recent decisions of the Administrative Court illustrate the kind of circumstances in which orders will be made; and also, strikingly, that an order can be made at the conclusion of a substantive hearing.

CPR 18.1 provides that “the Court may at any time order a party to – (a) clarify any matter which is in dispute in the proceedings; or (b) give additional information in relation to such matter, whether or the matter is contained or referred to in a statement of case”. PD 18 provides that Requests made under CPR18 should be “concise and strictly confined to matters which are reasonably necessary and proportionate to enable the...party to prepare his own case or the case he has to meet”. The courts have been clear that CPR 18 applications are not a vehicle for ‘fishing expeditions’, to investigate whether there are additional bases upon which a dispute can be raised.

In the context of judicial review proceedings, the leading case on the proper approach to CPR Part 18 applications is R (Bredenkamp) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWHC 2480 (Admin). In his judgement, Mr Justice Dingemans observed “there does not appear to be any relevant authority on the approach to be adopted when considering CPR Part 18 Requests for Further Information”. He held that applications had to be considered in the context of the duty of candour on public bodies in judicial review proceedings and ruled that the test to be considered was whether the provision of further information was “necessary in order to resolve the matter fairly and justly”. He went on to express the hope that CPR Part 18 applications in judicial review cases would remain “exceptional”.

Mr Justice Dingemans’ hope has been fulfilled – applications remain rare – but in the recent KBL and JZ cases two applications were successfully made. Each case involved a challenge to a decision to refuse the claimant a means of relocation from Afghanistan to the UK: in KBL (where the claimant wasa prominent women’s rights activist and human rights defender) the refusal was of an application under the ‘Leave Outside the Rules’ route for entry, and in JZ (where the claimant was a judge in Afghanistan) the refusal was of an application under the Afghan Relocation and Assistance Policy. In each case one element of the challenge to the impugned decisions was based on an alleged difference in treatment of the claimants and others in materially similar positions, in particular others who had been admitted to the UK under what became known as Operation Pitting. In each case, the claimants made CPR 18 applications designed to require the Home Office to provide extensive information about Operation Pitting.

In the KBL case, Mrs Justice Lang first of all reviewed the authorities on the duty of candour on defendants in judicial review proceedings, as well as the decision in Bredenkamp and in light of that held: “There is no separate procedure under the CPR for enforcing the duty of candour. Applications under Part 18 are one the ways in which a claimant may seek to give effect to the duty of candour owed by baa public authority, along with applications for specific disclosure of documents, where appropriate”. She then went on to review each of the questions that had been set out in the Part 18 application to determine whether the Home Office should provide the information requested.  Some questions were ruled out as being too broad or because they had been sufficiently addressed in the defendant’s evidence, but in relation to others she held that they should be answered, sometimes with a modification of the wording. In making this decision the judge explicitly held that, at least in one instance, there had been a failure to comply with the duty of candour.

In the JZ case Mrs Justice Hill adopted a similar approach, emphasising the importance of compliance with the duty of candour and the need to consider Part 18 applications in that context. She undertook a detailed review of the questions that had been included in the Part 18 application and held that some, but not all, should be answered.

One difference between KBL and JZ was timing. In KBL, the substantive hearing was adjourned so that the application under Part 18 could be determined. In JZ, and mainly because the application had been made late in the day, Part 18 application was decided at the end of the substantive hearing. The consequence of this was that once the questions had been answered, the parties were going to have to make further submissions on the impact of the answers to the questions on the issues in the claim and for there to be a further hearing before the judge.  In relation to this Mrs Justice Hill said: “Ultimately I consider that provision of this information is necessary in order to resolve the matter fairly and justly; that the Claimant’s conduct with respect to the application is likely to be relevant to the decision as to the costs of the application; and, that the case will need to be, and can be, robustly case managed once the questions are answered”.

Although it is possible that the decisions in KBL and JZ might indicate a slightly increased willingness on the part of the courts to make orders under CPR 18 in public law proceedings, applications under CPR 18 are still best viewed as being exceptional. What is clear is that when applications are made they will be subjected to very detailed scrutiny by a judge and that they can be a powerful tool for a claimant seeking to obtain information from a public body.

FURTHER INFORMATION

For further information on the issues raised in this blog, please contact Adam Chapman in our Public Law team.

 

ABOUT THE AUTHOR

Adam Chapman joined Kingsley Napley in January 2010 as a partner in the Public Law team. He has nearly 30 years experience as a public lawyer and previously spent most of his career in central government, working at the Treasury Solicitor’s Department and at the Attorney General’s Office.

 

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