Urgent JRs: A shot across the bow
It is well known that the bulk of Administrative Court is made up of asylum and immigration work. The most recently available statistics show that in 2010, of the 10,548 applications for permission to apply for judicial review, 77% of these were in the asylum and immigration category. Of this number, only 8% of the applications were granted permission (see: Judicial and Court Statistics 2010 (July 2011), table 7.12).
In short, the figures show that most asylum and immigration judicial reviews do not get permission. Why is this? At least part of the answer comes from the use of urgent applications for judicial review, which is a cottage industry that has developed over the years. Using Form N463, such an application must state the reasons for urgency; a timetable for hearing the matter; justification for immediate consideration, including the date on which it became apparent that an immediate application is necessary. Typically, this form is used to prevent the UK Border Agency (UKBA) from removing individuals to their country of origin. In a last ditch attempt to stay in the country, the application will be issued to cancel any removal directions.
This cottage industry was able to develop in light of an agreement that was brokered in 1999 between the Immigration and Nationality Directorate of UKBA and the Administrative Court known as ‘the Concordat'. Under the agreement, the Immigration and Nationality Directorate agreed to defer removals for an individual for 3-days in the event of a ‘threat' of judicial review so as to enable a court reference number to be obtained. If it was confirmed within 24 hours that judicial review proceedings had been initiated, the removal directions would then be cancelled.
By 2005, there were concerns by the Immigration and Nationality Directorate that the judicial review process was being abused for the purpose of frustrating removal because in a significant number of cases, threats of judicial review had been made or a court reference number had been obtained but the application for judicial review was not then pursued. In November 2006, the Immigration and Nationality Directorate changed its policy so that removal would no longer be deferred upon threat of judicial review but would only be deferred upon receipt of an Administrative Court Office reference number and of the grounds of claim. For a more detailed account see: R (Medical Justice) v Secretary of State for the Home Department (Rev 1)  EWHC 1925 (Admin) at -.
Accordingly, to frustrate the removal of an individual, a solicitor simply has to file an urgent application using Form N463, accompanied with the grounds of claim. Typically, the grounds of claim are in very short form. Grounds have been seen that simply say ‘The removal of the claimant would be unlawful' and nothing more. It is this that has given rise to the cottage industry: easy claims, and, for the lawyers, easy money.
But the Administrative Court has had enough. In R (Hamid) v Secretary of State for the Home Department  EWHC 3070 (Admin), Sir John Thomas, the President of the Queen's Bench Division, decided to take a stand. The case concerned an urgent application that made no mention of the reasons for urgency, nor whether an attempt to notify the defendant had been made. Sir John said the following:
‘If any firm fails to provide the information required on the form...the court will require the attendance in open court of the solicitor from the firm who was responsible, together with his senior partner. It will list not only the name of the case but the firm concerned. Non-compliance cannot be allowed to continue.'
He went on to say:
‘These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.
That is a warning for the future. We hope it will be unnecessary to have to have any further hearings of this kind or to refer anyone to the Solicitors Regulation Authority, but we will not hesitate to do so where there is a failure to comply with the court's requirements.'
This is heavy-duty stuff. To clarify: if an N463 form is not correctly filled in, the court will require attendance of the solicitor and senior partner of the firm in open court. The name of the firm will be noted. A referral to the Solicitors Regulation Authority may be made.
So, what of the cottage industry now? Solicitors seeking to make urgent applications will need to be rather more careful in the future. Whereas in the past such applications might have been nice little earners, in the future they may end careers.
A European take on costs in environmental litigation
It is not often that costs merit the attention of a public law news article; however, developments in two UK matters currently being decided in Europe signal potentially significant changes regarding the awarding of costs in environmental cases.
The 1998 Aarhus Convention, to which the EU is a signatory, states that ‘every person has the right to live an environment adequate to his or her health and wellbeing.' It provides a framework for public participation in environmental decision-making and access to justice, and states that access to court in order to challenge an environmental decision must be ‘fair, equitable, timely and not prohibitively expensive.' This language is taken up in Art 10a of the Environmental Impact Assessment Directive 85/337, designed to implement the Convention in EU law.
The first matter is a reference to the European Court of Justice (ECJ) from the Supreme Court, in the matter of R (on the application of Edwards and Pallikaropoulos) v The Environment Agency (Case C-260/11). It concerns a challenge to the granting of a permit to burn tyres as fuel at a concrete plant. The Claimants resisted an order for costs of £80,000 on the grounds that the amount was ‘prohibitively expensive' and thus in breach of Art 10a of the Environmental Impact Assessment Directive 85/337.
The second is a case referred by the Commission, again looking at breaches of the Environmental Impact Assessment Regulations. This follows a finding by the Aarhus Compliance Committee that the UK is in breach of the Convention on the basis of costs with the potential to restrict access to justice. The Commission is particularly concerned about the deterrent effect of high litigation costs on NGOs and individual claimants.
Advocate-General Kokott gave her opinion in the Edwards case in October. The main focus of the opinion is the proper interpretation of ‘prohibitively expensive'. Her approach has surprised, but not disappointed many commentators. In the Supreme Court the problematic issue was how the assessment of whether or not the procedure was prohibitively expensive should be undertaken: should the test be an objective one, for example, looking at the costs which could reasonably be borne by an ordinary member of public, or subjectively, taking into account the particular circumstances of the Claimant. This had also troubled the Court of Appeal in R (Garner) v Elmbridge Borough Council  EWCA Civ 1006.
The Advocate-General's opinion focused on the same question but rather than deciding one way or the other, she took the view that the appropriate test included both objective and subjective elements. Taking as her starting point the fact that the purpose of the Directive is to promote environmental protection, she noted that such issues concern not only private interests but also, and indeed often to a far greater degree, the public interest. Thus she found that where proceedings are in the public interest, the claimant ought not to be required to fully bear the financial risks of unsuccessful proceedings. This is tempered by the subjective element: where the claimant has a significant economic interest in the outcome, it is reasonable to expect them to bear a greater share of the burden.
Whilst this does not represent the opinion of the ECJ, the opinions of the Advocate-General are very often followed. If the ECJ takes this novel approach in the Edwards case. It may prove to be decisive in deciding the Commission's reference.
Perhaps with the potential impact of these cases in mind, the Ministry of Justice consulted earlier this year on proposals to remove protective costs orders in environmental cases. In their place would be introduced a fixed costs cap of £5,000 for individual claimants, £10,000 for an organisation, and a limit of £35,000 to be awarded to successful claimants. As yet it is not clear when, or indeed if, these will come into force. This scheme would provide certainty with elements of objectivity with some subjectivity: defendants would be able to request that the £5,000 limit be lifted where it would be appropriate for the claimant in question to bear more risk.
And what of the impact at practitioner level? The most significant difference could be a thawing of the oft-complained about chilling effect of the cost of environmental litigation. As the European Commission recognises it is not only individual claimants but NGOs who are discouraged from challenging environmental decisions by the potentially high costs of doing so. If the public interest of a case is a key factor in determining whether a claimant should be required to pay costs, we could well see a significant increase in cases brought both by individual claimants and environmental organisations; the warm welcome the Advocate-General's opinion has received amongst environmental NGOs would certainly suggest so.
A decision is expected in the Edwards case before Christmas, with the Commission reference due to be determined early next year.
If the fixed costs regime is introduced in accordance with the Government proposals there is then the interesting question of whether such an approach will be rolled out across civil litigation in general.
Michaelmas term in the Supreme Court
The remainder of this term has a distinctly devolved taste about it, with significant devolution issues from both Scotland and Wales arriving in Parliament Square.
Monday 12 November will see the Court sit in the case of Imperial Tobacco Limited v The Lord Advocate. This litigation is one of the most closely watched Scottish devolution cases to have arisen since the 2000 Act. It arises from the decision of the Scottish Government to ban the display of tobacco products for sale and prohibit their sale from automatic machines.
In the Inner House of the Court of Session, the debate focused on the question of what it meant for an Act of the Scottish Parliament to ‘relate' to a reserved matter. In one of his last judgments before moving to the Supreme Court, Lord Reed held that the correct approach was to consider the challenged provision in its legislative context. The Court could look at extraneous materials in order to establish this. The focus, he found, was on why the provision was enacted rather than the effect it had, although this could also be taken into account. He dismissed the approach preferred by Imperial Tobacco, which would have been to ignore the policy behind the legislation. Thus although the provision did have an impact on the reserved matter of the sale and supply of goods, their wider purpose was to prevent the display of tobacco products and their sale from vending machines, particularly in order to protect children. Lord Reed's approach follows that taken by the Supreme Court in Martin v HM Advocate  UKSC 10. The Court's approach seems unlikely to differ in this case, but the judgment will be of interest in the broader context of the developing discourse on the treatment of Scottish legislation and the generous interpretation the Scotland Act is given, not only by the Scottish courts, but also in London.
We are also awaiting the Court's decision in a key decision on Welsh devolution. Arguments in Local Government Byelaws (Wales) Bill 2012 - Reference by the Attorney General for England and Wales were heard on 9 October. This is the first challenge to a measure of any devolved administration to be brought by Westminster, and the Bill is the first to be brought since the extension of Welsh devolution in 2011. Clause 6 of the Bill purports to alter the existing requirement of concurrent confirmation of byelaws by the Welsh Minister and the Secretary of State, meaning that byelaws made under specified pieces of legislation would no longer require confirmation. Clause 9 gives the Welsh Ministers power to add to the list of legislation byelaws under which do not require confirmation. The Attorney General has questioned whether either clause removes or modifies a pre-commencement power of the Ministers of the Crown, which would be in breach of the Government of Wales Act 2006, and if so whether they are incidental or consequential to any other part of the Bill, which would bring them within competence. The Attorney General for Northern Ireland is also seeking clarification of what incidental or consequential means in the context of the Northern Ireland Act 1998.
Other public law cases which may be of interest include:
- Ruddy v Chief Constable, Strathclyde Police on whether a claim for damages resulting from an alleged breach of the procedural duty of investigation under Art 3 of the European Convention on Human Rights requires judicial review proceedings in order to establish breach.
- RM v The Scottish Ministers, in which the claimant argues that the Scottish Ministers were required to enact regulations which would enable him to challenge the level of security he is detained under, by virtue of the fact that the remainder of the Chapter 3 of the Mental Health (Care and Treatment) (Scotland) Act 2003 came into force on 1 May 2006.
- R (on the application of Faulkner) v Secretary of State for Justice on the quantification of damages for a breach of Art 5(4) of the European Convention on Human Rights, where the applicant had been detained for an additional 10 months due to delays on the part of the Secretary of State.
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