In Croydon LBC v Lopes (2017) EWHC 33 (QB) Lewis J held that the principles to be applied in deciding whether costs should be awarded in judicial review cases where the parties had agreed on the proper disposition of the underlying proceedings established in M v Croydon LBC [2012] 1 WLR 2607 were applicable to appeals against decisions on entitlement to housing under the Housing Act 1996, Section 204.  A local authority was entitled to its costs of an appeal withdrawn by a claimant where, had the appeal proceeded, it would have been the successful party. The precise approach depends upon the particular facts and circumstances of the case. Where a party has obtained the entire relief sought on the statutory appeal, so that that party can be said to be wholly successful, then, in general, that party should recover his or her costs unless there is some good reason to depart from that position. Where a party has succeeded in part, then a number of factors may be relevant as explained in paragraph 62 of the decision in R (M) v Croydon London Borough Council. In such circumstances, it may be appropriate to make no order for costs, or, if it is reasonably clear who would have succeeded if the appeal had gone to a hearing, that may indicate that that party should be awarded his or her costs. Where a settlement is reached which does not in fact reflect the claimant’s claims, it may be possible in some cases to consider the underlying claims and determine who would have been the successful parties and award costs accordingly. In other cases, that may not be possible and it may be that the appropriate order is no order for costs. It may also be that the appropriate order may be no order for costs where the judge cannot sensibly and fairly make an order in favour of either party without a disproportionate expenditure of judicial time: see per Lord Neuberger M.R., as he then was, at paragraphs 60 to 65 and per Stanley Burnton LJ at paragraph 77 in R (M) v Croydon London Borough Council.

In PS v GREENWICH COUNCIL (2016) EWHC 1967 (Admin) judicial review relief would have been refused both under Section 31(2A) of the Senior Courts Act 1981 and in the exercise of the Court’s discretion when, even if there had been errors in the local authority’s decision, the outcome for the claimant would have been no different.

In Richards v Worcestershire County Council (2016) EWHC (Ch) the County Council and an NHS Commissioning Group failed to strike out a CPR Part 7 restitution are claim by an individual who alleged that they had been unjustly enriched as a result of their failure to provide services following their after-care assessment under Section 117 of the Mental Health Act 1983 and who had paid privately for such services. The claim did not have to be by judicial review. Clunis v Camden and Jones v Powys were distinguished.

The Supreme Court has held by a 5-4 majority in Willers v Joyce (Neil) [1016] UKSC 43 that the tort exists of malicious prosecution not only in relation to criminal proceedings but also in relation to civil proceedings.  The Supreme Court considered and departed from the House of Lords decision in Gregory v Portsmouth City Council [2000] 1 AC 1412, preferring the decision of the Privy Council in Crawford v Sagicon [2014] AC 366.

 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