“PROCEDURAL RIGOUR IS IMPORTANT NOT FOR ITS OWN SAKE. IT IS IMPORTANT IN ORDER FOR JUSTICE TO BE DONE”

In R v Secretary of State for Health and Social Care and Secretary of State for Education ex parte Dolan and Others. [2020] EWCA Civ 1605 the Court of Appeal rejected an argument that the “lockdown” regulations were unlawful. However, this being Civil Litigation Brief, we are not interested in that aspect of the case.  We are interested in the postscript in relation to procedure and (basically) the need for brevity.

THE POSTSCRIPT

116. In a number of recent cases this Court has noted that there is “increasing concern about the need for appropriate procedural rigour in judicial review cases”: see R (Spahiu) v Secretary of State for the Home Department: Practice Note [2018] EWCA Civ 2064; [2019] 1 WLR 1297, at para. 2, where earlier authorities are set out (Coulson LJ). The present case leads us to repeat that concern.

117. Procedural rigour is important not for its own sake. It is important in order for justice to be done. It is important that there must be fairness to all concerned, including the wider public as well as the parties. It is important that everyone should know where they stand, so that, for example, the defendant can properly prepare evidence in a timely fashion.

118. This Court has also deprecated the trend towards what has become known as a “rolling” approach to judicial review, in which fresh decisions, which have arisen after the original challenge and sometimes even after the first instance judgment, are sought to be challenged by way of amendment: see Spahiu, paras. 60-63. Although, as Coulson LJ said, at para. 63, “there is no hard and fast rule”, he was right to say that it will usually be better for all parties if judicial review proceedings are not treated as “rolling”  or “evolving”. In our view, that is particularly so in a context like the present, where the regulations have been amended, sometimes very quickly, and where the issues raised by the grounds will often turn on the state of the evidence as it was at a particular
time. As we have mentioned, at one time, there was an application to amend the grounds so as to permit a challenge to be made to the regulations that were made on 3 July 2020. Fortunately, we did not have to determine that application, since it was not pursued, but we consider that this is precisely the kind of case in which “rolling” judicial review challenges should not be brought.

119. We have a particular concern in this case about the length and complexity of the grounds of challenge. The Amended Statement of Facts and Grounds runs to 87 pages. This was followed by Supplementary Grounds, which were another 13 pages. It is impossible to see how such statements can be regarded as complying with the requirement in the Administrative Court Judicial Review Guide 2020, at para. 6.3.1.1: that the document

“should be as concise as reasonably possible, while setting out the claimant’s arguments. The grounds must be stated shortly and numbered in sequence”.

That Guide was published after the present proceedings were commenced but similar guidance was given in earlier editions of that Guide: see e.g. the 2019 edition, at para. 6.3.4.1. Furthermore, this Court has, on more than one occasion, emphasised the need for a clear and succinct statement of the grounds: see e.g. R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841, at para. 68 (Singh LJ). 120. Despite these statements, we are concerned that a culture has developed in the context of judicial review proceedings for there to be excessive prolixity and complexity in what are supposed to be concise grounds for judicial review. As often as not, excessively long documents serve to conceal rather than illuminate the essence of the case being advanced. They make the task of the court more difficult rather than easier and they are wasteful of costs. It is for these reasons that skeleton arguments are subject to length constraints and so too, for example, the length of printed cases in the Supreme Court.

121. Although the Administrative Court Judicial Review Guide is clear, we consider that the time has come to invite the Civil Procedure Rule Committee to consider whether any amendments to the Rules or Practice Direction governing judicial review claims are called for to contain the problem we have identified