See R (Zahid) v Manchester University (2017) EWHC 188 (Admin), on judicial review as a remedy of last resort and alternative remedies, at paras 50-68, and on extensions of time for claim to be issued, at paras 73-94.

In Wolverhampton, Dudley, Sandwell and Walsall MBCs v Green and Charlesworth (2017) EWHC 96 (QB) the Councils had obtained injunctions against persons unknown prohibiting car cruising in a specified area and the issue before the High Court was sentence for breach.  Suspended sentences of imprisonment were imposed on two offenders who had breached the injunction. They had been part of a convoy of nine cars that had deliberately flouted the injunction and caused nuisance and disruption to local residents.  An aggravating feature was the uploading of a video to social media inviting others to join them.

In Hillingdon LBC v SoS for Transport [2017] EWHC 121 (Admin) Cranston J has held that on a proper construction of Section 13(1) of the Planning Act 2008, a legal challenge relating to a National Policy Statement could be brought only in the six-week period after the statement was designated or published. The Court did not have jurisdiction to hear the claimants’ application for judicial review of a decision of the Secretary of State for Transport to select for inclusion in a draft National Policy Statement a proposal for a third runway at Heathrow Airport. Read more »

In Southwark Council v Various Lessees of the St Saviour’s Estate (2017) UKUT 10 (LC) the Council appealed against a decision of the First-tier Tribunal preventing it from recovering the whole amount it had expended on works to residential flats through the service charge payable by the occupants. The Council submitted that the FTT had not applied the correct test on disrepair, and erred in finding that there was little evidence of the condition of the communal fire doors and in allowing an arbitrary figure of 50% without giving the parties the opportunity to comment.  The Upper Tribunal dismissed the appeal.  The FTT had been unable to accept the Council’s evidence on the communal fire doors and was not satisfied with the lessees’ evidence. It had been entitled to take that view of the evidence, to accept the fire risk assessments, and to take a broad-brush approach to the appropriate allowable figure.  The 50% figure was not arbitrary, but resulted from the FTT’s evaluation of the available evidence.  Had the FTT used its own knowledge or expertise to challenge the Council’s methodology or figures during the course of the proceedings, it would have been appropriate to give the parties an opportunity to comment.  However, after the close of the evidence, it had simply evaluated the evidence and reached a decision.  It had been entitled to take a robust approach and to arrive at a figure based on the evidence together with its own knowledge and expertise.  It would only be in exceptional cases that, during the course of its deliberations, a Tribunal would ventilate what it was proposing before reaching a final determination. Read more »

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.”