Acting to stop harm: the FCA and Appointed Representatives
It is commonplace to say judicial review is a remedy of last resort and in particular that if there is an adequate alternative remedy that is or was available to a claimant, permission to bring proceedings will normally be refused.
However, the grant of permission is a discretionary decision for the court and the availability of an alternative remedy is not an absolute bar – and permission may be granted if there are “exceptional circumstances”.
A recent decision of the Administrative Court – R oao MRH Solicitors Ltd v The County Court sitting at Manchester  EWHC 1795 Admin – illustrates just how exceptional those circumstances have to be.
The MRH case was a personal injury claim in which MRH acted on behalf of the claimant. The claim arose out of a motor accident and the principal defence to the claim was that the accident had been staged by the claimant driver and that consequently the claim was fraudulent.
After a four day trial the Recorder upheld the defence – but in his ex tempore judgement went further: he found that MRH were a party to the fraud (along with a car hire company and a car storage company).
Understandably MRH were dismayed by this – they had not been a party to the proceedings and so had not had any chance to present evidence to rebut any allegations against them. In fact there were no allegations against them - in the defence in which fraud had been alleged it was expressly alleged only against the claimants and not anyone else and in evidence one of the defendant’s witnesses expressly confirmed that no allegation of fraud against MRH was being made.
MRH sought, unsuccessfully, to persuade the Recorder not to finalise the official transcript of his judgment and then brought judicial review proceedings in which it was claimed that there had been a breach of natural justice which had resulted in MRH’s integrity being impugned unfairly.
In the judicial review claim MRH asserted that since it had not been party to the county court proceedings, it could not appeal the Recorder’s decision and so had no alternative remedy. The Administrative Court disagreed. It found (and said that this is what should happen if ever similar circumstances arose in the future) that MRH could have applied to be joined as a party to the proceedings (CPR r19.2 and r19.4) and then applied to the Recorder to remove the offending passages from the official transcript of his judgment. A refusal of either application by the Recorder would have created the possibility of an appeal to the High Court. There was therefore an alternative remedy.
The Court nevertheless decided that it would not exercise its discretion to refuse to hear the judicial review application. There were three principal reasons for this: first, because the finding of fraud was so serious; second, because the unfairness to MRH was “particularly egregious”; and third, because the alternative remedy that the Court had found was not an obvious one – it was described in the judgment as a “(theoretical) alternative remedy”.
The Court went on to hear the judicial review claim and found in MRH’s favour. The availability of an alternative remedy then got a second life – MRH sought costs against the County Court but this was refused because MRH could have dealt with the issues in a way that avoided the need for judicial review.
The decision on MRH does not create any new law but shows that in an extreme case – in particular one where the underlying merits of the claim are so strong – the suitable alternative remedy barrier to bringing judicial review proceedings can be overcome.
Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.
As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
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