Public law update: Back to School

Charles Bishop, one of Landmark Chambers’ public law specialist barristers, summarises some key public law cases from the past few months which consider important points of judicial review practice and procedure.

Standing

In R (Redrow plc, Redrow Homes Ltd and HB (WM) Ltd) v SSLUHC [2024] EWCA Civ 651, the Court of Appeal had a rare opportunity to consider issues of standing in judicial review. The case was a JR of a decision to allocate funds from the Building Safety Fund. The defendant granted funds to the interested parties for cladding remedial works. The claimant, who was not an applicant for the fund but faced costs of £30 million in respect of the fund, sought to challenge this decision. The defendant challenged its standing on the basis that the claimant was a “stranger” to the decision and had no basis for interfering in it.

The Court of Appeal rejected the standing challenge, reiterating that the starting point for any challenge based on standing is the “sufficient interest” test in section 31(3) of the Senior Courts Act 1981. As affirmed by Sedley LJ in R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2007] EWCA Civ 498 at [61], the test of standing for public law claimants is interest-based rather than rights-based. Although the claimant was not an applicant to the Building Safety Fund, the defendant’s decision stood to cost the claimant approximately £30 million. The claimant clearly had an interest in the decision. Moreover, the claimant had no route of challenging the decision other than via JR. It was therefore unrealistic to suggest that they had no interest. Note, however, that permission was refused for other reasons.

Separately, in R (Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 359 (Admin) was an application for JR brought by the NGO Rights: Community: Action, an NGO which monitors environmental work being done by local authorities through their development plan documents. The case concerned whether Inspectors appointed by the defendant to examine the soundness of West Oxfordshire District Council’s local plan erred in law in their treatment of a Written Ministerial Statement dated 2015. That Statement purported to control how energy performance requirements for new development would relate to the Building Regulations and the Code for Sustainable Homes. Other parties argued that the claimant lacked standing to bring the challenge and submitted that the challenge should have been brought by the local authority.

Referring to the well-known remarks on standing in R (Good Law Project) v Prime Minister [2022] EWHC 298 (Admin), Lieven J noted the need to have regard to the entire factual matrix of the case, including the nature of the decision under challenge, the substance and the merits. While the court should seek to exclude the mere “busybody”, the exercise should be approached with flexibility. In this case, the claimant could not properly be described as a busybody. It was an established NGO with a specific interest in local plan-making processes. Lieven J’s comments on the Good Law decision are of particular interest to those working in strategic litigation. At [61]-[62], she emphasised that it was incorrect to treat Good Law as laying down a rule that a claimant will lack standing simply because another organisation may be better placed to bring the challenge. Such a rule would amount to a “radical tightening of the rules in standing”.

Promptness

A further point considered by the Court of Appeal in Redrow Homes was the requirement to bring JRs promptly. The defendant resisted the application on the basis, inter alia, that it had not been brought promptly. In the pre-action protocol (PAP) correspondence, the claimant had been promised a reply to a letter of 22 August 2022. They issued the PAP letter absent the response after waiting for a period.

The decision was communicated to the claimant on 26 August 2022, with remedial works due to commence on 22 September 2022. The pre-action protocol (PAP) correspondence was not sent until 19 October 2022, at which point works had begun and £10 million had already been paid. However, the Court of Appeal held that this was not dispositive of the application. The claimant had sent a letter to the defendant on 27 August 2022 which, while not formal PAP correspondence, related to the claim and the defendant promised a reply. That reply never came. The Court of Appeal held that the claimant had been entitled to wait for the promised reply and, in the circumstances, the claim had been brought promptly. The decision indicates that the court will be more willing to adopt a flexible approach to promptness where the delay is, in part, attributable to the defendant.

In R (ZRR) v London Borough of Bexley [2024] EWHC 2073 (Admin), a claim based on an alleged failure to secure suitable accommodation under the Housing Act 1996, the claim was filed four months after the grounds first arose. Judge O’Connor, sitting as a judge of the High Court, found that, despite the “significant” delay, there was a good reason to extend time. One of the factors that was influential was that the application of the Housing Act 1996 to the claimant’s circumstances was uncertain. There was also no suggestion that the defendant would be disadvantaged by the decision to extend time.

Recusal of judges

The issue of recusal of judges often arises in contexts where a judge has been involved in a matter relating to the case previously or a party is concerned about the judge’s predispositions. Such concerns should be raised very carefully, as a poorly made application could lead to a highly critical judgment, as in Bates v Post Office Ltd [2019] EWHC 871 (QB).

The High Court considered two such cases recently. In R (Wilkinson) v Enfield LBC [2024] EWHC 1193 (Admin), a judicial review challenge was brought in respect of the defendant’s decision to grant a lease of a part of a park to Tottenham Hotspur for use as a women’s and girls’ football academy. Mould J notified the parties prior to the hearing that he had acted for Haringey Council in a compulsory purchase order inquiry in which Tottenham Hotspur, an interested party in the present litigation, had been an objector. Mould J’s involvement included cross-examining Tottenham Hotspur’s witnesses, prompting concerns of predisposition.

Mould J decided not to recuse himself. He referred to the judgment in the Bates case, which summarised the position as follows:

“[the judge] should not recuse himself, unless [i] he either considers that he genuinely cannot give one or other party a fair hearing or [ii] that a fair minded and informed observer would conclude that there was a real possibility that he would not do so”.

Applying those principles, Mould J held that the fair minded and observer would recognise that his criticism of Tottenham Hotspur’s witnesses in the CPO inquiry took place in a previous professional context, rather than being personal animus on his part that suggested predisposition.

Mould J’s analysis was mirrored in R (Alhasan) v Director of Legal Aid Casework [2024] EWHC 1676 (Admin), which concerned a policy regarding asylum-seeking children’s eligibility for legal aid in attending asylum interviews. The policy had its origins in a 2003 consultation response informed by a joint legal opinion written by Michael Fordham (as he then was). The judicial review was listed to be heard by Fordham J. On a request by the defendant for Fordham J to recuse himself, he decided not. Fordham J noted that a judge’s employment background, previous instructions and advice will not usually give rise to an appearance of bias. While extra-judicial writings on legal issues would not necessarily give rise to an appearance of bias, it is essential to consider “the tone in which opinions are expressed and whether that is such as to give the impression that the judge has preconceived views” [7]. These cases reinforce the fact-sensitive nature of the question of recusal.

This article is written by Charles Bishop.

You can listen to the full webinar recording here.