Section 31(2A) of the Senior Courts Act was introduced by Section 84 of the Criminal Justice and Courts Act 2015, coming into effect on 13 April 2015. It provides:
“(2A) The High Court –
(a) must refuse to grant relief on an application for judicial review … if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”
The forms of relief referred to in Section 31(1)(1) include “(a) a mandatory, prohibiting or quashing order” and “(b) a declaration or injunction under subsection (2)”. Subsections (2B) and (2C) state:
“(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(2C) If the court grants relief … in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.”In R (Goring-on-Thames Parish Council) v South Oxfordshire District Council (2018) EWCA Civ 860 the Parish Council contended that Section 31(2A) has no application when a claimant succeeds in establishing a substantive error of law, as opposed to “a mere procedural technicality”. The Court of Appeal rejected this contention. The Court said:
“47. … In our view … the proposition that the section 31(2A) duty applies only to “conduct” of a merely “procedural” or “technical” kind, and not also to “conduct” that goes to the substantive decision-making itself, is a surprising concept. The duty has regularly been applied to substantive decision-making across the whole spectrum of administrative action … both at first instance and in decisions of this court … Although we did not hear full argument on the point, we would be prepared to say that the narrow construction of section 31(2A) contended for by the parish council is, on the face of it, mistaken. It does not seem to us to gain any real support in the first instance decisions on which Mr Streeten relied. The concept of “conduct” in section 31(2A) is a broad one, and apt to include both the making of substantive decisions and the procedural steps taken in the course of decision-making. It is not expressly limited to “procedural” conduct. Nor, in our view is such a qualification implied. …”
“53. But there is, we think, a further point that can fairly be made here. As we suggested to Mr Streeten while he was making his submissions to us, his argument on the construction and scope of section 31(2A) faces a fatal difficulty, which is that ultimately it proves too much … If the argument was right, and the concept of “conduct” in section 31(2A) does not extend to substantive as well as to procedural errors of law, so that the duty in that section did not apply in this case, the court would still have had its discretion as to relief, which it would have had to exercise in accordance with the well established principles in Simplex GE (Holdings) Ltd. v Secretary of State for the Environment (1989) 57 P. & C.R. 306. It would then have had to consider whether there was any realistic possibility of the district council’s decision being different but for the error of law (see Lord Carnwath’s judgment in Walton v Scottish Ministers [2012] UKSC 44, at paragraphs 111 and 112, his judgment in R. (on the application of Champion) v North Norfolk District Council [2015] UKSC 52, at paragraphs 54 to 66, and the discussion in De Smith’s Judicial Review, eighth edition, paragraphs 18-047 to 18-050 and 18-057). …”
“55. … If … the court is to consider whether a particular outcome was “highly likely” not to have been substantially different if the conduct complained of had not occurred, it must necessarily undertake its own objective assessment of the decision-making process, and what its result would have been if the decision-maker had not erred in law.”