PROPORTIONALITY AND CASE MANAGEMENT: THE OVERRIDING OBJECTIVE APPLIES ON A MACRO SCALE: “ACADEMIC” ISSUE SHOULD PROCEED TO A HEARING
In London Borough of Haringey v Simawi  EWHC 290 (QB) Mr Justice Nicklen expressly considered the Overriding Objective when determining whether a human rights issue that could be rendered “academic” should continue to a hearing.
“Those rules are directed at the case management of individual cases, but they seem to me to apply with equal force (by way of analogy) on a macro scale… It seems to me that I should assess the costs of resolving Ground 1 in this case against the costs (and the drain on the court’s resources) of resolving the issue in these and future cases”
The claimant was bringing an action for possession of domestic rented premises. The defendant was defending on the grounds that the limited rights of succession were incompatible with The Human Rights Act 1998, Articles 8 and 14. The Secretary of State for Communities and Local Government was involved in the action as an interested party.
AN “ACADEMIC” ARGUMENT
The action was transferred to the High Court because of the incompatibility issues. The matter was listed for a hearing on whether the issues were “academic” and whether there should be a hearing on these issues if they were rendered academic. It was agreed that if the claimant offered the defendant a new tenancy the issues would be academic. However that had not happened. The issue was whether the incompatibility issues should continue to a hearing even if, a later date, the issue became an academic one. The defendant argued that the issue should be determined. The claimant and interested party resisted this.
THE JUDGMENT ON THIS ISSUE
When deciding whether it is right to burden the Claimant with its costs of resolving Ground 1, I should consider whether such a course would be in accordance with the overriding objective. CPR Part 1.1(1) indicates that the overriding objective is to “[enable] the court to deal with cases justly and at proportionate cost“. The concept of dealing with cases “justly and at proportionate cost” includes, so far as is practicable (CPR part 1.1(2)):
a) ensuring that the parties are on an equal footing;
b) saving expense;
c) dealing with the case in ways which are proportionate:
i) to the amount of money involved;
ii) to the importance of the case;
iii) to the complexity of the issues; and
iv) to the financial position of each party;
d) ensuring that it is dealt with expeditiously and fairly; and
e) allotting to it an appropriate share of the court’s resources, which taking into account the need to allot resources to other cases.
Under CPR Part 1.4, the Court is required to further the overriding objective by actively managing cases including: “(h) considering whether the likely benefits of taking a particular step justify the cost of taking it; [and] (i) dealing with as many aspects of the case as it can on the same occasion“.
Those rules are directed at the case management of individual cases, but they seem to me to apply with equal force (by way of analogy) on a macro scale. Ground 1 is an issue that could be raised in any – and is being raised in some – possession claims in the County Court. It seems to me that I should assess the costs of resolving Ground 1 in this case against the costs (and the drain on the court’s resources) of resolving the issue in these and future cases. On that measure, the benefits of having Ground 1 resolved clearly justify the costs of it being determined; the economies of scale are obvious. This case is, essentially, a test case. It is dealing with an issue, in one case, that would otherwise be raised potentially in several cases at different time and in different courts. Given that the hearing has been fixed for 2 October 2018, dealing with the issue in this way is expeditious; it might take another 3-4 years for some other litigant to get his/her case to a similar point. When considering the financial position of the parties, I should assume (for the reasons I have given in paragraph 38(ii) above) that the parties who are likely to be affected by the point are likely to have extremely limited resources (or be in receipt of public funding). Resolving Ground 1 in this case is likely, overall, to save expense and very significantly to equal the footing that would otherwise be the case in individual County Court claims for possession. Ground 1 is clearly both important and complex.
Having considered all of these factors, I have come to the clear view that I should exercise my discretion to order the determination of Ground 1 even if, subsequently, its resolution in this particular case is rendered academic. I am satisfied that the particular circumstances in this case make it “exceptional“. Directions have been given to progress the determination of this issue at the hearing starting on 2 October 2018.