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London Solicitors Litigation Association Lecture 12^th April 2010

 

                        Recent Developments in Judicial Review

 

                             Khawar Qureshi QC

 

 

 

 

Essential background.

 

• Judicial Review is the process whereby (i) enactments (mainly secondary legislation- primary legislation is reviewed with regard to EU Law and the Human Rights Act 1998), and (ii) acts/omissions of public bodies are reviewed by the Court. Public bodies are those entities and persons exercising a “governmental function/carry out activities which contain a public element” (Datafin (1987) (CA)). The definition of public body includes non-statutory bodies which, if they did not exist, the State would have intervened to create a body to carry out their functions.  In the case of R v. Insurance Ombudsman Bureau Exp. Aegon Life Insurance Ltd (7/1/994) (The Times), the Court held that Judicial Review was not available because the OIB’s jurisdiction was dependent on the contractual consent of its members, and its decisions were of a private law arbitrative nature.

 

• Section 31 of the Supreme Court Act 1981 (identifies the remedies available), and. Taken together with CPR 54, provides the procedural framework for Judicial Review applications. There is a 3 month time-limit for applications (which can be extended but applications should always be made promptly), and the grant of relief in Judicial Review cases is discretionary (but rarely declined if an application is sustained).

 

• The Claimant must possess a “sufficient interest” in the subject matter of the Judicial Review application. “Public Interest” Judicial Review applications are increasingly common (see for example CAAT v. the Director of the SFO (2008) (discontinuance of the BAe/Saudi alleged corruption investigation)).

 

• When challenging an act or omission of a public body, the Claimant must (in essence) demonstrate (on the basis of documents and written witness evidence only) that the public body has (i) erred in law (ii) acted irrationally (iii) breached the rules of natural justice/displayed procedural impropriety.

 

• The Administrative Court deals with Judicial Review applications. The first stage (assuming the pre-action protocol has been complied with or urgency prevents this) is the “permission stage” – normally dealt with on paper whereby the Claimant must show an “arguable case”. If permission is refused on the papers, a renewed oral permission application can be made. The second stage is the “substantive stage”.

 

 

 

 

Recent Developments.

 

 

 

• Judicial Review is one of the few growth areas in Civil Litigation. Around 10,000 applications for permission to seek Judicial Review are commenced every year[1]. Approximately 10% of applications succeed (many are discontinued before the Court considers them). Most applications are in the areas of Immigration, Crime and Planning. Last year, the Administrative Court established a bench in Manchester which means that Judicial Review cases can be heard there also.

 

 

• Key trends include the following;

 

(i).        More Judicial Review challenges concerning Governmental activity in Military conflict zones (Iraq/Afghanistan) with reference to ECHR and Public International Law principles

 

(ii).       Greater recourse to Disclosure applications (post the House of Lords decision in the case of Tweed v. Parade Commission [2006] )

 

(iii).      An increase in attempts by Claimants to seek protective costs orders (available where general public importance is engaged in the application, the Claimant has no financial interest in the outcome, and it is otherwise fair and just to make such an order) – limiting or excluding potential costs recovery against the Claimant altogether; for the general principles see the case of R (Corner House Research) v. Secretary of State for Trade and Industry [2005] EWHC Civ. 192.

 

 

 

 

Some Recent Cases.

 

 

Given the mass of case-law, a selection of recent Court decisions is listed below with reference to the specific issues considered by the Court;

 

 

(A). The Limits of Judicial Review

 

(B). Costs questions

 

(C). Grounds of challenge

 

(i).        Procedural Impropriety

(ii).       Rationality

(iii)       Error of Law

(iv).      Review of Enactments

(v).       EU Law based

(vi).      ECHR based

 

(D).      Disclosure Issues

 

(E).      Satellite Litigation

 

 

 

 

 

(A).   The Limits of Judicial Review.

 

R (on the application of A) v B (2009)
The Administrative Court had no jurisdiction to hear an application for judicial review brought by a former member of the Security Service challenging the refusal of the Director of Establishments of the Security Service to consent to the publication of material about the Security Service. By reason of the Regulation of Investigatory Powers Act 2000 s.65(2)(a), exclusive jurisdiction lay with the Investigatory Powers Tribunal.
ADMINISTRATION OF JUSTICE - HUMAN RIGHTS
[2009] UKSC 12
SC (Lord Phillips (President), Lord Hope (Deputy President), Lord Brown, Lord Mance, Lord Clarke) 9/12/2009
References: LTL 9/12/2009 : (2010) 2 WLR 1 : (2010) 1 All ER 1149 : Times, December 11, 2009
Document No.: Case Law - AC0123014

 

 

R (on the application of AL-HAQ) v SECRETARY OF STATE FOR FOREIGN & COMMONWEALTH AFFAIRS (2009)
The court had no jurisdiction to hear an application for permission to apply for judicial review by a non-governmental human rights organisation that sought declarations that the government of the United Kingdom was responsible for breach of its international obligations in respect of Israel. The court was not entitled to declare or direct what action the government of the United Kingdom was to take upon the assumed breach of international law by Israel.
INTERNATIONAL LAW - ADMINISTRATIVE LAW
[2009] EWHC 1910 (Admin)
DC (Pill LJ, Cranston J) 27/7/2009
References: LTL 3/8/2009 : (2009) ACD 76
Document No.: Case Law - AC0121718

 

 

 

R (on the application of FRANCIS BOYLE) (Claimant) v HAVERHILL PUB WATCH (Defendant) & (1) CHIEF CONSTABLE OF SUFFOLK CONSTABULARY (2) JD WETHERSPOON PLC (Interested Parties) (2009)
The decision of a local pub watch scheme to ban an individual from all the participating licensed premises was not amenable to judicial review as it did not have a sufficient public element to bring it within the purview of public law. Legitimate schemes operated by sections of the public to discourage crime should not have to run the risk of their decisions being subject to the threat of judicial review simply because their work received assistance and support from public agencies.
ADMINISTRATIVE LAW - HOSPITALITY AND LEISURE - UNINCORPORATED ASSOCIATIONS
[2009] EWHC 2441 (Admin)
QBD (Admin) (Judge Mackie QC) 8/10/2009
References: LTL 13/10/2009
Document No.: Case Law - AC0122333

 

 

THOMAS GORDON BROWN (Claimant) v CARLISLE CITY COUNCIL (Defendant) & STOBART AIR LTD (Interested Party) (2009)
It was not appropriate to grant an individual permission to apply for judicial review of the local authority's grant of planning permission to a company to do works at an airport where it was clear that there was no real prospect of the individual successfully applying for the judicial review if he was given permission to pursue the claim.
ADMINISTRATIVE LAW - LOCAL GOVERNMENT - PLANNING
[2009] EWHC 2519 (Admin)
QBD (Admin) (Owen J) 16/10/2009
References: LTL 16/10/2009 : (2009) 42 EG 177 (CS)
Document No.: Case Law - AC0122432

 

 

R (on the application of (1) KIBRIS TURK HAVA YOLLARI (2) CTA HOLIDAYS) (Claimants) v SECRETARY OF STATE FOR TRANSPORT (Defendant) & CYPRUS (Interested Party) (2009)
The secretary of state was lawfully bound to refuse an application by a Turkish air operator to vary its operating permit for flights between the United Kingdom and Turkey so that it could fly directly to northern Cyprus. The granting of the variation would have placed the UK in breach both of its obligations under the Convention on International Civil Aviation 1944 and its duty not to recognise the Turkish Republic of Northern Cyprus as a state.
INTERNATIONAL LAW - AVIATION
[2009] EWHC 1918 (Admin)
QBD (Admin) (Wyn Williams J) 28/7/2009
References: LTL 3/8/2009
Document No.: Case Law - AC0121760

 

 

 

(B).    Costs Issues.

 

 

R (on the application of (1) CONNOR ALLBUTT (BY HIS LITIGATION FRIEND DEBORAH ALLBUTT) (2) JOSHUA ALLBUTT) (Claimant) v MINISTRY OF DEFENCE (Defendant) & (1) ARMY PROSECUTING AUTHORITY (2) LINDSAY MACDUFF (Interested Parties) (2009)
Claimants in a discontinued application for judicial review of certain decisions by the Ministry of Defence were not entitled to costs of the proceedings because in reality the discontinuance followed a wholesale review by the claimants of their claim's merits and not as a result of the late disclosure of evidence indicating that tapes of oral evidence given at another hearing had been considered by the Ministry in making its decisions. That evidence was not of significant importance and had it been, the claimants could have questioned the Ministry on it at an earlier juncture.
CIVIL PROCEDURE - ARMED FORCES - COSTS
[2009] EWHC 3351 (Admin)
QBD (Admin) (Pitchford J) 1/12/2009

 

 

 

 

 

 

Protective Costs Orders - Refused.

 

R (on the application of GARNER) (Applicant) v ELMBRIDGE COUNCIL (Respondent) & (1) GLADEDALE GROUP LTD (2) NETWORK RAIL (Interested Parties) (2010)
A protective costs order sought in relation to judicial review proceedings against a local authority which granted planning permission for the development of sites opposite Hampton Court Palace was refused, as the issues raised were not of general public importance and there was insufficient evidence of the applicant's financial resources. Thus, it was not possible to determine whether the applicant would probably discontinue the judicial review proceedings and would be acting reasonably in so doing.
CIVIL PROCEDURE - COSTS - PLANNING
QBD (Admin) (Nicol J) 3/3/2010
References: LTL 3/3/2010 EXTEMPORE

 

 

 

 

TESCO PLC (Applicant) v COMPETITION COMMISSION (Respondent) & (1) WAITROSE LTD (2) MARKS & SPENCER PLC (3) ASDA STORES LTD (4) ASSOCIATION OF CONVENIENCE STORES (Interveners) (2009)
A large grocery store was awarded its costs in relation to proceedings in which it had successfully challenged a recommendation by the Competition Commission to introduce a competition test as part of the planning process for large grocery stores. However, the amount awarded was reduced to take into account the disparity of costs between the parties.
COMPETITION LAW - CIVIL PROCEDURE - COSTS
[2009] CAT 26
CAT (Barling J (President), John Pickering, Graham Mather) 15/10/2009
References: LTL 26/10/2009
Document No.: Case Law - AC0122433

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(C).  Grounds of Challenge.

 

 

 

(i).        Procedural Impropriety

 

Failure to consider a new argument.

 

MCKEOWN v BRITISH HORSERACING AUTHORITY (2010)
The disciplinary panel of the regulating body responsible for horseracing had been entitled to find that a jockey had deliberately failed to ride a horse on its merits in four races and conspired with a trainer, a horse owner and various gamblers to commit a corrupt practice by providing inside information to enable the gamblers to place bets against horses ridden by him in certain races in breach of the rules of racing. Whilst the appeal panel had been entitled to uphold those findings, it ought to have remitted a new argument raised by the jockey on appeal concerning the trainer's credibility, and that matter would be remitted where it might have a limited impact on findings relating to the passing of information and, consequently, on the period of disqualification from racing imposed as a penalty.
CIVIL EVIDENCE - ADMINISTRATION OF JUSTICE - SPORT
[2010] EWHC 508 (Admin)
QBD (Stadlen J) 12/3/2010
References: LTL 18/3/2010
Document No.: Case Law - AC0124091

 

 

Compare with

 

 

R (on the application of EASYJET AIRLINE CO LTD) (Appellant) v CIVIL AVIATION AUTHORITY (Respondent) & GATWICK AIRPORT LTD (Interested Party) (2009)
There was no procedural unfairness in the consultation process preceding the Civil Aviation Authority's decision fixing airport charges for Gatwick Airport. The authority had failed to give a valid notice pursuant to the Civil Aviation Authority (Economic Regulation of Airports) Regulations 1986 reg.12 of the charges it intended to impose but it was too late for airlines to complain about that failure.
AVIATION - ADMINISTRATIVE LAW
[2009] EWCA Civ 1361
CA (Civ Div) (Dyson LJ, Maurice Kay LJ, Rimer LJ) 15/12/2009
References: LTL 15/12/2009
Document No.: Case Law - AC0123086

 

 

and

 

OXFAM v REVENUE & CUSTOMS (2009)
In a case of legitimate expectation, involving an assurance given to only one person and where there was no irrationality on the part of the public authority in adopting a different approach, the absence of detrimental reliance on the part of the person to whom the assurance was given was fatal to the argument that to modify the assurance would involve an abuse of power on the part of the public authority which gave the assurance.
VAT - ADMINISTRATIVE LAW - CHARITIES
[2009] EWHC 3078 (Ch)
Ch D (Sales J) 27/11/2009
References: LTL 3/12/2009 : Times, December 31, 2009
Document No.: Case Law - AC0122891

 

 

R (on the application of HEATHER MOOR & EDGECOMB LTD) v FINANCIAL OMBUDSMAN SERVICE (2009)
The Financial Ombudsman Service scheme provided an independent and impartial tribunal, and was compatible with the rights of the parties that came before it under the European Convention on Human Rights 1950 art.6, even though the parties had no automatic right to an oral hearing during the investigation process.
ADMINISTRATIVE LAW - CIVIL PROCEDURE - FINANCIAL REGULATION - HUMAN RIGHTS
[2009] EWHC 2701 (Admin)
QBD (Admin) (Judge Davis QC) 18/9/2009
References: LTL 17/11/2009
Document No.: Case Law - AC0122625

 

PIERS COKE-WALLIS v INSTITUTE OF CHARTERED ACCOUNTANTS IN ENGLAND & WALES (2009)
In the circumstances it was not an abuse of process for the ICAEW to prefer a second disciplinary complaint against an accountant after a previous complaint had failed on an evidential technicality.
ACCOUNTANCY - CIVIL PROCEDURE - CRIMINAL PROCEDURE
[2009] EWCA Civ 730
CA (Civ Div) (Sir Anthony May (President QB), Arden LJ, Jacob LJ) 15/7/2009
References: LTL 15/7/2009
Document No.: Case Law - AC0121565

 

 

Appearance of Bias.

 

BAA LTD v COMPETITION COMMISSION (Defendant) & RYANAIR LTD (Intervener) (2009)
A fair-minded and informed observer would have concluded that there was a real possibility of bias where a member of the Competition Commission's panel investigating an airport operator had links to a second airport operator, which was involved in the investigation and stood to benefit from sanctions imposed upon the first operator.
COMPETITION LAW - AVIATION
[2009] CAT 35
CAT (Barling J, Lord Carlile of Berriew QC, Sheila Hewitt) 21/12/2009
References: LTL 26/1/2010
Document No.: Case Law - AC0123197

 

 

 

 

 

(ii).       Rationality.

 

 

R (on the application of EQUITABLE MEMBERS ACTION GROUP) (Claimant) v HM TREASURY (Defendant) & (1) PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION (2) JOHN CHADWICK (Interested Parties) & ATTORNEY GENERAL (Intervener) (2009)
The Government's reasons for rejecting several findings by the Parliamentary Commissioner for Administration of maladministration and injustice in the prudential regulation of the Equitable Life Assurance Society lacked cogency and reasoning.
BANKING AND FINANCE - ADMINISTRATIVE LAW - INSURANCE
[2009] EWHC 2495 (Admin)
DC (Carnwath LJ, Gross J) 15/10/2009
References: LTL 23/10/2009
Document No.: Case Law - AC0122420

 

 

R (on the application of (1) AMRO INTERNATIONAL SA (2) CREON MANAGEMENT SA) v (1) FINANCIAL SERVICES AUTHORITY (2) BETH CONNELL (3) PATRICIA SENRA (Defendants) (4) GOODMAN JONES LLP ( (2009)
Where two companies were not subject to a civil claim in the United States, it was wrong for the Financial Services Authority to have exercised its powers under the Financial Services and Markets Act 2000 Pt XI to accede to a request from the US investigatory authority in US proceedings for disclosure of documents relating, not only to the person charged, but also to the two companies who might or might not have been connected. Those companies would, as a result of their non-party status, be unfairly prejudiced by the grant of such a request.
CIVIL EVIDENCE - FINANCIAL REGULATION
[2009] EWHC 2242 (Admin)
QBD (Admin) (Collins J) 26/8/2009
References: LTL 27/8/2009 (Unreported elsewhere)
Document No.: Case Law - AC9200891

 

 

 

 

DEMAND & SUPPLY CASH & CARRY LTD (2) S&D RETAIL LTD v REVENUE & CUSTOMS COMMISSIONERS (2009)
The removal and detention of business documents, namely computers and goods, from the premises of two businesses by the Revenue and Customs Commissioners, who wished to ascertain the true source of goods sold by the businesses and whether any applicable excise duty had been paid, was justified, particularly where the businesses were interconnected and one of the businesses was a purchaser of goods from a tainted source and had no proper system for recording the entry of stock and movement.
CUSTOMS
[2009] EWHC 3321 (Admin)
QBD (Admin) (Kenneth Parker J) 18/12/2009
References: LTL 22/12/2009
Document No.: Case Law - AC0123204

 

 

 

R (on the application of PEOPLE & PLANET) v HM TREASURY (2009)
Where the government was a majority shareholder in a bank, the Treasury was entitled to adopt a policy which called for a commercial approach in the exercise of its powers, in accordance with its objective of preserving the stability of the financial system in the United Kingdom, while minimising the cost to the taxpayer.
GOVERNMENT ADMINISTRATION
[2009] EWHC 3020 (Admin)
QBD (Admin) (Sales J) 20/10/2009
References: LTL 10/12/2009
Document No.: Case Law - AC0122850

 

R (on the application of FRIENDS OF THE EARTH & ORS) v SECRETARY OF STATE FOR ENERGY & CLIMATE CHANGE (2009)
When considering implementation of a fuel poverty strategy, it was permissible for the Secretary of State for Climate Change to consider the strategy's reasonable practicability by reference to current budgetary constraints.
SOCIAL WELFARE - ADMINISTRATIVE LAW
[2009] EWCA Civ 810
CA (Civ Div) (The President of the Family Division, Maurice Kay LJ, Lloyd LJ) 30/7/2009
References: LTL 30/7/2009 : (2010) Env LR 11 : Times, October 13, 2009
Document No.: Case Law - AC0121770

 

 

 

 

 

 

 

 

(iii).      Error of Law – an Illustration of the approach.

 

 

FINANCIAL SERVICES AUTHORITY (2) ELISABETH CONNELL (3) PATRICIA SENRA (Appellants) v (1) AMRO INTERNATIONAL SA (2) CREON MANAGEMENT SA (Respondents) & GOODMAN JONES LLP (Interested Party) (2010)
There was no error of law or principle in the decision of the Financial Services Authority to appoint investigators to obtain documents sought by the United States Securities and Exchange Commission pursuant to a letter of request under a multilateral memorandum of understanding.
FINANCIAL REGULATION - CIVIL EVIDENCE - HUMAN RIGHTS
[2010] EWCA Civ 123
CA (Civ Div) (Sir Anthony May (President QB), Stanley Burnton LJ, Jackson LJ) 24/2/2010
References: LTL 24/2/2010
Document No.: Case Law - AC0123852

 

 

 

(iv).      Review of Enactments – Secondary Legislation.

 

 

 

HM TREASURY v MOHAMMED JABAR AHMED & ORS : HM TREASURY v MOHAMMED AL-GHABRA : R (on the application of HANI EL SAYED SABAEI YOUSSEF) v HM TREASURY (2010)
The Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006 art.3(1)(b) were ultra vires.
INTERNATIONAL LAW - CIVIL PROCEDURE - CRIMINAL LAW - HUMAN RIGHTS
[2010] UKSC 2
SC (Lord Phillips (President), Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Mance) 27/1/2010
References: LTL 27/1/2010 : (2010) 2 WLR 378 : Times, January 29, 2010
Document No.: Case Law - AC0123462

 

 

R (on the application of KAUPTHING BANK HF) v HM TREASURY (2009)
HM Treasury had acted lawfully in making the Kaupthing Singer & Friedlander Limited Transfer of Certain Rights and Liabilities Order 2008, which transferred the liabilities of an Icelandic bank's subsidiary, as owed to the holders of certain deposit accounts, to a third-party company.
BANKING AND FINANCE - FINANCIAL REGULATION
[2009] EWHC 2542 (Admin)
DC (Richards LJ, Maddison J) 20/10/2009
References: LTL 26/10/2009
Document No.: Case Law - AC0122457

 

 

R (on the application of MISICK) v SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS (2009)
The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009, which suspended the right to jury trial and replaced representative government by the national assembly with a system of direct administration by the governor, was not unlawful and had not been made ultra vires.
CONSTITUTIONAL LAW
[2010] EWCA Civ 1549
CA (Civ Div) (Laws LJ, Richards LJ, Hughes LJ) 12/8/2009
References: LTL 10/3/2010
Document No.: Case Law - AC0123955

 

 

 

 

(v).       EU Law based.

 

R (on the application of (1) STEPHEN AKESTER (2) MARC MELANAPHY (ON BEHALF OF THE LYMINGTON RIVER ASSOCIATION)) (Claimant) v (1) DEPARTMENT FOR ENVIRONMENT, FOOD AND RURAL AFFAIRS (2) WIGHTLINK LTD (Defendants) & (1) LYMINGTON HARBOUR COMMISSIONERS (2) NATURAL ENGLAND (3) NEW FOREST DISTRICT COUNCIL (Interested Parties) (2010)
A ferry operator's decision to introduce a new, larger ferry on a route which affected an internationally designated nature conservation site was unlawful where it had been made in breach of its duties as a competent authority under Directive 92/43 art.6(3) and the Conservation (Natural Habitats, &c.) Regulations 1994. At the time of that decision, the Directive had not been fully and properly transposed into domestic law by the Regulations in their original form.
ENVIRONMENT - LOCAL GOVERNMENT
[2010] EWHC 232 (Admin)
QBD (Admin) (Owen J) 16/2/2010
References: LTL 22/2/2010 : (2010) NPC 19
Document No.: Case Law - AC0123729

 

 

Interpretation and application of EU Law.

 

(1) STAGECOACH GROUP COMPANIES (2) GO-AHEAD GROUP COMPANIES (3) CONCESSION AUTHORITIES (Claimants) v SECRETARY OF STATE FOR TRANSPORT (Defendant) & TRAVEL CONCESSION AUTHORITIES (Interested Parties) (2010)
The proper interpretation of Regulation 1191/69 art.11 and art.12 was that travel operators who were compelled by travel concession authorities to operate a concessionary fare scheme were to be compensated both for the loss of the commercial fares which would have been paid had the scheme not existed, and for any extra costs generated by the scheme resulting in there being a greater number of passengers than otherwise.
TRANSPORT - EUROPEAN UNION
[2010] EWHC 233 (Admin)
QBD (Admin) (Irwin J) 16/2/2010
References: LTL 18/2/2010

 

 

R (on the application of BRISTOL-MYERS SQUIBB PHARMACEUTICALS LTD) v NATIONAL INSTITUTE FOR HEALTH & CLINICAL EXCELLENCE (2009)
There had not been a breach of Directive 89/105 where the National Institute for Health and Clinical Excellence had refused to recommend using a drug in the NHS, in accordance with criteria notified to the European Commission, as the drug was not cost-effective when there was a high demand for it and resources were scarce.
HEALTH - EUROPEAN UNION - PHARMACEUTICALS
[2009] EWHC 2722 (Admin)
QBD (Admin) (Blake J) 6/11/2009
References: LTL 11/11/2009 : (2010) Med LR 20
Document No.: Case Law - AC0122709

 

 

(vi).      ECHR Right to Property.

 

SRM GLOBAL MASTER FUND LP (2) RAB SPECIAL SITUATIONS (MASTER) FUND LTD (3) DENNIS GRAINGER & ORS v TREASURY COMMISSIONERS (2009)
The assumptions which the valuer of Northern Rock shares was required to make pursuant to the Banking (Special Provisions) Act 2008 s.5(4) did not violate the rights of shareholders under the European Convention on Human Rights 1950 Protocol 1 art.1.
BANKING AND FINANCE - FINANCIAL REGULATION - HUMAN RIGHTS - INSOLVENCY
[2009] EWCA Civ 788
CA (Civ Div) (Sir Anthony Clarke MR, Waller LJ, Laws LJ) 28/7/2009
References: LTL 28/7/2009 : (2009) UKHRR 1219
Document No.: Case Law - AC0121730

 

 

 

 

 

 

 

 

(D).   Disclosure and Evidence Issues.

 

SHAKER AAMER v SECRETARY OF STATE FOR FOREIGN & COMMONWEALTH AFFAIRS (2009)
Where a Guantanamo Bay detainee sought disclosure of certain documents from the secretary of state under the Norwich Pharmacal principles to support his case before a review task force that any confessions he might have made during his detention had been induced by torture or ill-treatment, it was necessary to grant the relief as the interests at stake in the determination of the task force were so high and the potential consequences to the detainee so grave that nothing less than the opportunity to make reasoned submissions as to the significance of the information the documents contained could be considered sufficient.
CIVIL PROCEDURE - HUMAN RIGHTS
[2009] EWHC 3316 (Admin)
DC (Sullivan LJ, Lloyd Jones J) 15/12/2009
References: LTL 21/12/2009
Document No.: Case Law - AC0123090

 

 

 

R (on the application of JAMES MCVEY) v SECRETARY OF STATE FOR HEALTH (2009)
Disclosure of communications between the secretary of state and the trustees of a trust set up to fund an ex gratia scheme to compensate the victims of variant Creutzfeld-Jakob Disease was ordered in the context of a judicial review claim in which it was asserted that the secretary of state had failed in his general duty to keep the scheme under review and to initiate changes to it as necessary.
CIVIL PROCEDURE - ADMINISTRATIVE LAW
[2009] EWHC 3084 (Admin)
QBD (Admin) (Black J) 6/10/2009
References: LTL 9/12/2009
Document No.: Case Law - AC0122884

 

Cross-examination.

 

R (on the application of AL-SWEADY & ORS) v SECRETARY OF STATE FOR DEFENCE (2009)
In judicial review cases concerning disputed breaches of human rights under the European Convention on Human Rights 1950, it was vital for the parties to consider whether there were "hard-edged" questions of fact to resolve, of the kind described in R v Monopolies and Mergers Commission Ex p South Yorkshire Transport Ltd (1993) 1 WLR 23, as that would be relevant in determining whether the court needed to make orders for cross-examination and disclosure.
ADMINISTRATIVE LAW - ARMED FORCES - CIVIL EVIDENCE - HUMAN RIGHTS
[2009] EWHC 2387 (Admin)
DC (Scott Baker LJ, Silber J, Sweeney J) 2/10/2009
References: LTL 8/10/2009 : (2010) HRLR 2 : Times, October 14, 2009
Document No.: Case Law - AC0122250

 

 

 

International Relations – Intelligence sharing and PII

 

R (on the application of BINYAM MOHAMED) v SECRETARY OF STATE FOR FOREIGN & COMMONWEALTH AFFAIRS (2010)
The confidentiality of working arrangements between allied intelligence services was not absolute so that, after balancing the public interest in national security against the public interest in open justice as safeguarding the rule of law, free speech and democratic accountability, certain paragraphs that contained a summary of reports made by the United States government to the United Kingdom government relating to the detention and treatment of a suspected terrorist ought to be included in a judgment, as the paragraphs did not contain any information which could pose a risk to national security, but did contain information that it was in the public interest to disclose.
ADMINISTRATIVE LAW - HUMAN RIGHTS
[2010] EWCA Civ 65
CA (Civ Div) (Lord Judge LCJ, Lord Neuberger of Abbotsbury MR, Sir Anthony May (President QB)) 10/2/2010
References: LTL 10/2/2010 : Times, February 16, 2010
Document No.: Case Law - AC0123656

 

 

Compare with

 

R (on the application of KHUDER AL-SWEADY & 5 ORS) v SECRETARY OF STATE FOR DEFENCE (2009)
There were serious failures within the Ministry of Defence in relation to its procedures for public interest immunity claims. Until such time as the MoD could demonstrate that its procedures had remedied the risk of the errors that took place in the instant case occurring again, it would be incumbent on courts to approach the content of any ministerial certificate and schedule with very considerable caution.
CIVIL EVIDENCE - ADMINISTRATION OF JUSTICE - GOVERNMENT ADMINISTRATION
[2009] EWHC 1687 (Admin)
DC (Scott Baker LJ, Silber J, Sweeney J) 10/7/2009
References: LTL 16/7/2009 (Unreported elsewhere) : Times, August 3, 2009
Document No.: Case Law - AC0121577

 

 

 

 

(F).    Satellite Litigation - The Tort of abuse of process and Judicial Review.

 

LAND SECURITIES PLC (2) LS WILTON PLAZA LTD (3) LS PARK HOUSE LTD v FLADGATE FIELDER (A Firm) (2009)
The tort of abuse of process was of limited application and there was no reasonably arguable basis for extending it beyond the heads of damage that had to exist for invocation of the tort of malicious prosecution. In particular, there was no basis for extending it to applications for judicial review for which the court had given permission and in which the damage relied on was general economic loss.
PLANNING
[2009] EWCA Civ 1402
CA (Civ Div) (Mummery LJ, Moore-Bick LJ, Etherton LJ) 18/12/2009
References: LTL 18/12/2009 : (2010) 1 EG 70 (CS) : (2009) NPC 147 : Times, January 27, 2010
Document No.: Case Law - AC0123167

 

 

 

 

 

Concluding Observations.

 

 

The examples of cases above illustrate the breadth of activities which are potentially susceptible to Judicial Review. 

 

The Courts have shown considerable dynamism in exercising their jurisdiction, and there is every indication that the plethora of legislation coupled with increasing awareness of Judicial Review amongst citizens and practitioners alike will ensure that Judicial Review continues to be a growth area in civil litigation.

 

 

                                                                                                12^th April 2010

 

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