The CPR provide that a party may inspect a document mentioned in a witness statement. This provision has been considered by the Court of Appeal in Abacha v National Crime Agency (2016) EWCA Civ 760.  Gross LJ, with whom Hamblen LJ and Sir Colin Rimer agreed, adopted the following analysis from paragraph 28:-

1. The mere fact that a document is “mentioned” in one of the documents specified in CPR r. 31.14(1) does not automatically and without more entitle the other party to inspect it. The Court retains a discretionary jurisdiction to refuse inspection.
2. The general rule is clear. Ordinarily, if under CPR r. 31.14(1) a document is “mentioned”, inter alia, in a witness statement, the other party has a right to inspect it. In CPR terminology, CPR r. 31.14 reflects basic fairness and principle in an adversarial system; in accordance with the overriding objective, the parties are to be on an equal footing.
3. Thirdly, the right to inspect under CPR r. 31.14 is not, however, unqualified; it is instead subject to CPR rules based limits, which may be invoked by the party resisting inspection – the burden resting on that party to justify displacing the general rule. Thus, “proportionality” is part of the overriding objective CPR r.1.1(2)(c) and, in an appropriate case, it would be open to a party to oppose inspection on the ground that it would be “disproportionate to the issues in the case”: CPR r.31(3)(2). In determining any such issue of proportionality, a Court would very likely have regard to whether inspection of the documents was necessary for the fair disposal of the application or action. So too, the mere mention of a privileged document in (for example) a statement of case may not of itself lead to a loss of the privilege; CPR r.31.14 is to be read with and subject to CPR r.31.19(3) and (5).
4. There is nothing to suggest that the RSC approach to confidentiality has changed under the CPR. Accordingly, while disclosure and inspection cannot be refused by reason of the confidentiality of the documents in question alone, confidentiality (where it is asserted) is a relevant factor to be taken into account by the Court in determining whether or not to order inspection. The Court’s task is to strike a just balance between the competing interests involved – those of the party asserting an entitlement to inspect the documents and those of the party claiming confidentiality in the documents. In striking that balance in the exercise of its discretion, the Court may properly have regard to the question of whether inspection of the documents is necessary for disposing fairly of the proceedings in question.
5. There is some free-standing “necessity” test which needs to be satisfied before permitting inspection where CPR r.31.14 is otherwise satisfied. In this regard, the CPR differ from the previous regime contained in RSC O.24, though, as already demonstrated, the question of whether inspection is “necessary to dispose fairly” of the application or case is not rendered irrelevant – and may well arise in the context of proportionality or that of confidentiality. On this analysis “necessity” is or may be (depending on the facts) a relevant factor in striking the just balance; it is not a free-standing hurdle to be considered and surmounted in isolation before inspection may be permitted.

In the Judicial Review claim R (Southwark LBC) v LFEPA [2016] EWHC 1701 (Admin) it was contended that there were two decisions, each of which had to be addressed.  The first was a decision to retain responsibility for a decision whether or not to prosecute.  The second was said to be the decision not to change the first decision.  This contention was rejected by a Divisional Court.  Sir Brian Leveson, delivering the Judgment of the Court said, at paragraph 56:

“In our judgment, the argument is entirely misconceived: there is but one decision that requires to be assessed. Thus, the original decision continues to operate until it is brought into effect or reversed. In the absence of new facts which might justify a change of approach, a second decision is not made simply as a consequence of a refusal to change the first one. Were it otherwise, the time limit for judicial review of any decision could be re-started following a refused request to change it.”

Three cases hot off the press more or less together on legitimate expectation. First and foremost the decision of the Privy Council in United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17.  Lord Neuberger gives the main Judgment.  He restates the basis of the doctrine: (i) where a public body (ii) states that it will do (or not do) something (iii) a person who reasonably (iv) relied (v) on that statement (vi) should (vii) in the absence of good reasons (viii) be entitled to rely on the statement and (ix) enforce it through the Courts.  He reaffirms at paragraphs 37/38 a number of points: (1) in order to found a claim based on the principle, it is clear that the statement in question must be “clear, unambiguous and devoid of relevant qualification”; (2) the principle cannot be invoked if, or to the extent that, it would interfere with the public body’s statutory duty; (3) however much a person is entitled to say that a statement by a public body gave rise to a legitimate expectation on his part, circumstances may arise where it becomes inappropriate to permit that person to invoke the principle to enforce the public body to comply with the statement, either on account of (2) above or if, taking into account both the fact that the principle applies and in all other relevant circumstances the public authority should or could reasonably decide not to comply with the statement.  Lord Neuberger continues, at paragraph 39, that it is clear that legitimate expectation can be invoked in relation to most, if not all, statements as to procedure, but it is unclear how far it can be implied in relation to statements as to substantive matters, for instance statements in relation to the macro- economic/macro-political field.  On this occasion, it was unnecessary to consider the law on this “difficult and important topic” more fully.

Lord Carnwath gave a lengthy concurring Judgment. He concluded, at paragraph 121:

“In summary, the trend of modern authority, judicial and academic, favours a narrow interpretation of the Coughlan principle, which can be simply stated. Where a promise or representation, which is “clear, unambiguous and devoid of relevant qualification”, has been given to an identifiable defined person or group by a public authority for its own purposes, either in return for action by the person or group, or on the basis of which the person or group has acted to its detriment, the court will require it to be honoured, unless the authority is able to show good reasons, judged by the court to be proportionate, to resile from it. In judging proportionality the court will take into account any conflict with wider policy issues, particularly those of a “macro-economic” or “macro-political” kind.”

In R (Lahrie Mohamed) v HMRC, Judgment 28 June 2016, Elizabeth Laing J stated the principles thus: that to establish a legitimate expectation as a result of a particular representation it had to be shown that (1) a claimant had put all his cards on the table, (2) a representation had been made, (3) the representation was clear, unambiguous and devoid of any relevant qualification, (4) the representation had been relied upon by the claimant, (5) and it had been relied upon to his detriment.  She added that it was especially difficult to satisfy the requirement that a claimant had to put all his cards on the table where it had been a purely oral exchange.

In R (Biffa Waste Services Ltd) v HMRC [2016] EWHC 1444 (Admin) Sir Kenneth Parker considered legitimate expectation as a result of guidance by way of what is to be regarded as a general statement.  He restated the law on legitimate expectation/abuse of power from paragraph 77.  He accepted that the determination of the meaning and scope of any representation or assurance by a public authority is not an exercise in mere semantics.  The Court, having regard to the relevant legal and factual circumstances, must ascertain, where appropriate, what is fairly and reasonably implicit in such assurance: “Evaluating the fairness of the conduct of a public authority is not an exercise in semantics: it is necessary to ascertain, against the relevant legal and factual matrix, what the representation fairly and reasonably meant to those to whom it was made”.

At paragraph 115 Kenneth Parker J added: “On the footing … that public law recognizes a principle of conspicuous unfairness I would have been prepared to hold, had it been necessary, that a public authority … may not, without infringing that principle, put forward as the true meaning of a particular representation an interpretation that is wholly inconsistent with what the public authority intended at the time of that representation in question.”

Whether an unaccompanied individual is a child for immigration purposes has to be determined by the Court as an issue of objective fact. It is not a matter of what an Immigration Officer reasonably believes: AA v SSHD and Wolverhampton City Council [2016] EWHC 1453 (Admin).

… in R ota Khan v SSHD [2016] EWCA Civ 416, a decision of 4th April 2016.  Beatson LJ, setting aside permission to appeal (the other judges agreeing),  said

35 The duty to disclose all material facts known to a claimant in judicial proceedings including those which are or appear to be adverse to his case prior to applying for permission is well established …

36  Notwithstanding the provision by CPR 54.8 for a respondent to judicial review proceedings to file an acknowledgement of service and summary grounds, it remains the case that a claimant in judicial review proceedings must ensure that the judge dealing with such an application has the full picture in order to make the relevant decision …

Peter Oldham QC

There is no special rule for public authorities when it comes to applications for an extension of time. The principles applicable derive from the decisions of the Court of Appeal in Mitchell v NGN (2013) EWCA Civ 1537 and Denton v White (2014) EWCA Civ 906.  A Judge must approach an application for relief from sanction in three stages, as follows:-

1. The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a Judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the Judge decides that the breach is serious or significant, then the second and third stages assume greater importance.
2. The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. If there is a good reason for the default, the Court will be likely to decide that relief should be granted. However, even if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.
3. The third stage is to evaluate all the circumstances of the case, so as to enable the Court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with Rules, Practice Directions and Court Orders. The Court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it.

In SSHD v Razia Begum (2016) EWCA Civ 122 the Court of Appeal has reaffirmed, at paragraphs 14/15 and 23, that there is no special rule for public law cases.  However, the “importance of the issues to the public at large” can properly be taken into account at the third stage.