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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.
An unincorporated association (“UA”) is an organisation formed of people who come together for a common purpose other than business.
Because UAs lack legal personality, they do not have the capacity to sue and be sued in their own name in private law claims. In principle they can, however, participate in public law claims, where the courts apply a flexible approach. Because of the need to safeguard the defendant public body’s ability to recover costs if a UA’s claim fails, conditions may be applied to the UA’s involvement. The court can require a legal person to take part beside the claimant UA, or else order security for costs before the UA’s public law claim can proceed. This is similar to the approach taken when individuals incorporate a company to try to limit their personal exposure in litigation. In rare cases, defendants can also be UAs in public law proceedings.
The capacity of a UA to bring a public law claim was recently at issue in Aireborough Neighbourhood Development Forum v Leeds City Council & Ors  EWHC 45 (Admin). In her judgment, Mrs Justice Lieven reviewed the authorities and dispersed any lingering doubts about the position summarised above.
The claim was a statutory challenge by the Aireborough Neighbourhood Development Forum (the “Forum”) to the adoption by Leeds City Council of the Leeds Site Allocation Plan (the “SAP”). The Forum is a UA, constituted in 2014 with the aim (among other things) of securing good planning for a particular neighbourhood.
Mrs Justice Lieven had no difficulty finding that the Forum could bring its claim, and that UAs generally can bring both judicial review claims and statutory challenges. She explained that there is a clear rationale for the different treatment of UAs in public and private law, as follows (paragraph 29):
…there is a critical distinction between private and public law litigation. In private law the individual has to be able to show that they have a legal right which has been infringed, therefore it is fundamental that they have legal capacity to sue. In contrast the critical question in judicial review or statutory challenge is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of legal capacity but rather one of sufficient interest in the decision…The claim is ‘invoking the powers of the court to exercise its supervisory jurisdiction…to quash curb or correct decisions of bodies subject to public law. The personal rights of individual applicants…may never be in play.’ See [R v Traffic Commissioners of the North Western Traffic Area ex p Brake  COD 248] Therefore the legal capacity of the claimant is not a critical component of the court having jurisdiction in a judicial review or statutory challenge. ”
The judge went on to describe how a more flexible approach to standing has emerged over time for sensible reasons. In 21st Century England and Wales, interested people frequently choose to group together to make representations or attend inquiries on matters of interest and importance to them. Subject to appropriate procedural protections being established for the defendant, it would be “unfortunate if the law prevented them challenging the decision which they had participated in, in the same groupings as they had made the representations” (paragraph 31). Judicial review and statutory challenges also frequently arise in “closely aligned circumstances” so it would be “most unfortunate” if significantly different rules led to marked divergence (paragraph 34).
Two further points are mentioned in the judge’s analysis that are worth repeating.
First, she found support for her conclusion in the definition of ‘person’ in the Interpretation Act 1978. Under the Act, unless the contrary intention appears, ‘person’ includes “a body of persons…unincorporate”. She recognised that a particular law may well contain a contrary intention, in which case a UA would be barred from participating in the specific type of challenge governed by that law; and
Second, since it formed, the Forum has developed a written constitution, opened a bank account, chosen a steering group and built an identifiable membership. It has participated actively in the development of the SAP. Finally, between 2014 and 2019 it was designated as a ‘Neighbourhood Forum’ under planning legislation and is currently seeking renewal of that status. It is therefore cohesive and well settled, and its members and decision makers are readily identifiable. Its interest in the matter being challenge is also obvious. Mrs Justice Lieven found that such qualities do not affect the validity of a UA’s claim. However, their absence may give rise to avoidable difficulties. Especially if a UA claimant lacks cohesion, certainty and a clear connection to the matter in dispute, challenges to its standing by the other parties are likely, as are appeals for costs protection and the addition or substitution of less inchoate claimants. If a legal person is named as the claimant instead, such unnecessary technical obstacles can be avoided.
Campaigning organisations will welcome this judgment. It appears, however, that plans are afoot in government circles to curtail the ability of such organisations to bring judicial review challenges. (See our blog What does the new government mean for public lawyers? on the proposed updating and rebalancing of administrative law.) One way the government might target such organisations could be by passing legislation tightening the rules governing the capacity of UAs to participate in public law claims.
Adam Chapman is a Partner and Head of our Public Law team. He has a wealth of knowledge as a public lawyer and his areas of expertise include judicial review litigation, human rights law, public inquiries, inquests, information law and contempt of court.
Nick Wrightson is a Senior Associate in our Public Law team. Nick has an administrative and public law practice focused on judicial review litigation and supporting clients through public inquiries. Nick’s experience includes representing public bodies, private companies, individuals, representative bodies and charities – often in high stakes, politically and commercially sensitive cases.
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