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

2. 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

3. 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

4. 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 s directly relevant to issues

5. 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)

6. 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 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 (inspection of documents referred to in statements) does not apply to JR: Jet2.com

7. 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

8. 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

9. 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, docs
Inherent jurisdiction

10. 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

11. 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)