JR PRACTICE AND PROCEDURE: A MISCELLANY Christopher Knight 20 July 2019

What to Cover? Amenability to judicial review The duty of candour Specific disclosure (and the overlap with candour) Pleadings Appeals Access to court records Legal aid

Amenability to JR Skilled person appointed by bank and FCA to determine redress offers under mis-selling scheme R (Holmcroft Properties) v KPMG LLP [2018] EWCA Civ 2093 Contractual arrangements, but a sufficient public law ‘flavour’ to the functions from FCA oversight? No. A compensation scheme, private law flavour, gaps in protection not determinative

R (Citizens UK) v SSHD [2018] EWCA Civ 1812: Duty of Candour R (Citizens UK) v SSHD [2018] EWCA Civ 1812: Duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues Witness statements must not either deliberately or unintentionally obscure areas of central relevance. No ‘spin’! Can occur by omission, for example by the non-disclosure of a material document/fact or by failing to identify the significance of a document/fact Serious breach of candour uncovered by CUK finding SSHD evidence in other proceedings after High Court judgment, including internal emails directly relevant to issues

Candour and Disclosure under CPR r.31.12 Specific Disclosure Candour and Disclosure under CPR r.31.12 R (Horeau) v SSFCA [2018] EWHC 1508 (Admin) R (Jet2.com Ltd) v Civil Aviation Authority [2018] EWHC 3364 (Admin) R (Police Federation) v SSHD [2019] EWHC 1308 (Admin)

Specific Disclosure Candour is not (just) about disclosure – it is not candid to drown the other side in documents and not alert the Court to the important ones: Horeau Rule 31.12 applies in JR – there is no ‘substantial doubt’ as to candour threshold: Jet2.com The Court will try to encourage candid agreement rather than disclosure of sake of it: Police Federation Rule 31.14 (inspection of documents referred to in statements) does not apply to JR: Jet2.com

The importance of proper pleadings R (Fayed) v SSHD [2018] EWCA Civ 54 – must plead your cause of action if damages sought in a JR claim And if damages sought under HRA, must plead how the ECHR principles in Article 41 are met (s8(4)). No makeweights PN v SSHD [2019] EWHC 1616 (Admin) – amendment applications must show the proposed amendments

Appeals CPR r.52.5 – permission applications decided on paper only If an oral hearing is only on one ground, those refused on paper are gone: R (Lucas) v SSHD [2018] EWCA Civ 2541 CPR r.52.5 – permission applications decided on paper only No right to an oral hearing on PTA is compatible with Article 6 ECHR and access to justice: no right to perfection R (Siddiqui) v Lord Chancellor [2019] EWCA Civ 1040

Access to Court Records CPR r.5.4C Applies to court records Inherent jurisdiction? Cape v Dring [2019] EWCA Civ 1795 Essentially those filed with the court (not trial documents) r.5.4C Not for trial bundles or doc referred to Yes: skellies, statements, 31.22 docs Inherent jurisdiction

Access to Court Records R (BAT) v SSHealth [2018] EWHC 3586 (Admin): Starting point is importance of principle of open justice Distinction between r.5.4C and inherent jurisdiction artificial (and CPR amendments desirable) Reason for application not likely to be determinative Restrictions could be justified where privacy/ confidentiality/ security reasons required it Disclosure granted of documents from the JR

Legal Aid Access to Justice Act 1999, s10(7); LASPO 2012, s25 LAA can impose statutory charge over HRA damages LAA can waive the charge, subject to conditions Community Legal Service (Finance) Regs 2000, reg 47 Waiver can be at end of case, but conditions must be met during R (Faulkner) v DLAC [2018] EWCA Civ 1656 HRA damages given in care action; should separate claims Northamptonshire CC v Lord Chancellor [2018] EWHC 1628 (Fam) PSPO challenge not of benefit to claimant, legal aid rightly refused R (Liberty) v DLAC [2019] EWHC 1532 (Admin)