Judicial Review Update Jonathan Moffett QC 19 February 2018 - - PowerPoint PPT Presentation

Judicial Review Update

Jonathan Moffett QC

19 February 2018

Introduction

Five topics:

• 1. Right to a fair hearing
• 2. Consultation
• 3. Public sector equality duty
• 4. Systemic challenges
• 5. Costs

• 1. Right to a fair hearing

The end of the road

• 1. Right to a fair hearing

Poshteh v Kensington and Chelsea RLBC [2017] 2 WLR 1417

• Are decisions as to homelessness accommodation subject

to art 6?

• no: Ali v Birmingham CC [2010] 2 AC 39
• yes: Ali v United Kingdom (2015) EHRR 20
• Supreme Court followed its previous decision rather than

the ECtHR

• 1. Right to a fair hearing

Poshteh v Kensington and Chelsea RLBC [2017] 2 WLR 1417

• Supreme Court re-affirmed general approach of domestic

courts:

• it is not in the public interest for social welfare funds to be

spent on legal disputes

• art 6 cannot be expanded indefinitely
• no civil right where an authority has discretion as to how it

performs duties which call for an exercise of judgement

• 2. Consultation – Part 1

Be careful what you ask for

• 2. Consultation – Part 1

R (Derbyshire CC) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority [2016] EWHC 3355 (Admin)

• Challenge to consultation on expanding Combined

Authority to include Chesterfield DC

• Consultation questionnaire did not actually ask whether

consultees thought that Chesterfield should be part of the Combined Authority

• 2. Consultation – Part 1

R (Derbyshire CC) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority [2016] EWHC 3355 (Admin)

• Ouseley J held that consultation was unfair:
• questions asked must be ones that can be understood by

consultees and which will generate answers which consulting body can properly understand in its decision- making process

• questions asked around the main issue were not a proxy

for a simple question on the main issue

• 2. Consultation – Part 2

As clear as mud

• 2. Consultation – Part 2

R (Jones) v Denbighshire CC) [2016] EWHC 2074 (Admin)

• Challenge to decision to close two primary schools and

establish a new primary school

• Proposal to be implemented in two phases:

(1) new school to operate on two sites of existing schools, (2) new school to move to new single site

• Challenged on the basis that the consultation document

was unclear

• 2. Consultation – Part 2

R (Jones) v Denbighshire CC) [2016] EWHC 2074 (Admin)

• Divisional Court upheld the challenge:
• looked at as a whole, the consultation document was

“hopelessly confused”

• fundamental inconsistencies as to whether Council was

consulting only on phase 1 or on both phases 1 and 2

• differences between different language versions were

“highly regrettable”

• 3. Public sector equality duty

Call a spade a spade

• 3. Public sector equality duty

R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin)

• Challenge to decision to reduce funding of voluntary
• rganisations who provide short breaks to disabled children
• Councillors were provided with all the information they needed

to comply with PSED and were provided with the text of s 149

• f the Equality Act 2010
• But councillors were told that PSED required them to keep the

welfare of service users and their families at the forefront of their minds, particularly the most disadvantaged

• 3. Public sector equality duty

R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin)

• Laing J quashed the decision:
• councillors had been directed to a formula that did not

accurately capture the effect of s 149

• councillors were told to focus on the wrong question
• a paraphrase of a statutory requirement which includes some

but not all relevant matters is insufficient

• 4. Systemic challenges – Part 1

Nothing is impossible

• 4. Systemic challenges – Part 1

R (Liverpool CC) v Secretary of State for Health [2017] EWHC (Admin)

• Knock-on consequences of Cheshire West and Chester

Council v P [2014] AC 896

• Local authorities were not funded to cover increased cost
• f applications to authorise deprivations of liberty
• Argued that government’s failure to provide funding gave

rise to an unacceptable risk of illegality

• 4. Systemic challenges – Part 1

R (Liverpool CC) v Secretary of State for Health [2017] EWHC (Admin)

• Garnham J dismissed the challenge:
• case law on unacceptable risk of illegality relates only to

unacceptable risk of procedural unfairness

• reliance on R (Hillingdon LBC) v Lord Chancellor [2008]

EWHC 2683 (Admin) was misplaced: that was an irrationality case

• in any event, the evidence did not show that it was impossible

for local authorities to find the money

• 4. Systemic challenges – Part 2

Watch this space

• 4. Systemic challenges – Part 2

R (Woolcock) v Secretary of State for Communities and Local Government (CO/4711/2016)

• Challenge to system for enforcing council tax whereby

defaulters are committed to prison for non-payment

• Alleged that procedure is systemically unfair
• Due to be heard by a Divisional Court at the end of

December

• 5. Costs – Part 1

The early bird catches the worm

• 5. Costs – Part 1

R (RSPB) v Secretary of State for Justice [2017] EWHC 2309

• Challenge to new Aarhus cost-capping rules in environmental

cases

• Previous rule applied for fixed £5,000/£10,000 cap on

claimant’s liability and fixed £35,000 cap on defendant’s liability

• New rules allow for standard costs caps to be varied or

removed

• Challenge based on lack of predictability and “chilling effect” of

uncertainty

• 5. Costs – Part 1

R (RSPB) v Secretary of State for Justice [2017] EWHC 2309

• Dove J dismissed this aspect of the challenge, but held that:
• any application to vary the costs cap would have to be made

in the acknowledgment of service

• would have to be “good reason” to apply for variation at a later

stage, e.g.:

• it transpires that claimant provided misleading information,
• r
• the claimant’s financial position has changed

• 5. Costs – Part 2

Winning isn’t everything

• 5. Costs – Part 2

R (Tesfay) v Secretary of State for the Home Department [2016] 1 WLR 4853

• Challenges to decisions to remove asylum-seeker to other

EU countries

• Decisions withdrawn after adverse Supreme Court judgment,

but dispute as to costs

• Court of Appeal applied R (M) Croydon LBC [2012] 1 WLR

2607

• 5. Costs – Part 2

R (Tesfay) v Secretary of State for the Home Department [2016] 1 WLR 4853

• Court of Appeal awarded the claimants their costs:
• success in public law proceedings must be judged against what

was achievable

• securing reconsideration of a decision will usually be

considered a success

• the fact that eventual reconsideration goes against the

Claimant is not a reason for refusing costs