Holdsworth v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jeremy Baker |
| Judgment Date | 03 November 2016 |
| Neutral Citation | [2016] EWHC 3405 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2897/2012 |
| Date | 03 November 2016 |
[2016] EWHC 3405 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Jeremy Baker
CO/2897/2012
Mr Hugh Southey QC (instructed by Stephensons) appeared on behalf of the Appellant
Mr Matthew Gullick (instructed by Government Legal Department) appeared on behalf of the Respondent
On 8 March 2005 Susan Holdsworth, the claimant, was convicted of murder. A subsequent appeal against conviction was allowed by the Court of Appeal (Criminal Division) and a retrial was ordered. At the conclusion of the retrial on 1 December 2008 the claimant was acquitted of murder.
On 2 March 2009 the claimant made an application to the defendant for compensation under Section 133 of the Criminal Justice Act 1988. On 16 September 2009 that application for compensation was refused. On 19 March 2012 the claimant sought permission to judicially review the defendant's refusal to award compensation to her. The original grounds sought to challenge the lawfulness, firstly, of the defendant's original refusal of the claimant's application for compensation; secondly, of the defendant's refusal to reconsider the claimant's application for compensation; and, thirdly, of the defendant's refusal to allow the claimant to make a fresh application for compensation.
On 25 April 2012 His Honour Judge Pelling QC (sitting as a Deputy High Court Judge) granted permission, but stayed the hearing of the application for judicial review pending the outcome of a number of similar claims (the leading one being that of Barry George). Further stays were granted by Mr Justice Irwin (as he then was) on 24 May 2012 and 8 February 2013.
On 30 June 2015 the claimant applied to amend her grounds of judicial review and sought to rely upon Article 6 European Convention on Human Rights (ECHR). The application notice at paragraph 5 asked the question, "How do you want to have this application dealt with?", to which the claimant's solicitors placed an "X" in the box marked "Without a hearing". On 13 August 2015 the defendant applied to the court for a further stay until Nealon was determined. These applications came before Anthony Elleray QC (sitting as a Deputy High Court Judge) on 3 September 2015. He ordered that both the claim and the claimant's application to amend be stayed until fourteen days after the disposal of the appeal in Nealon, and the first instance decision in Nkiwane. He also ordered that upon the lifting of the stay the parties shall within fourteen days file and serve skeleton arguments in support of, or opposition to, the proposed amendments and directions. In paragraph 15 of his observations, Anthony Elleray QC stated:
"I anticipate that the judge reading the directive and skeleton arguments may be happy to resolve the application to amend on paper. If not, he or she can direct an oral hearing."
On 4 December 2015 the claimant made a further application to amend her grounds of judicial review. On 9 May 2016 Hugh Southey QC, instructed on behalf of the claimant, submitted a skeleton argument which sought to make further amendments to the claimant's grounds of judicial review. On 14 June 2016 Matthew Gullick, of counsel, instructed on behalf of the defendant, provided a skeleton argument opposing the application to amend the grounds for judicial review. On 18 June 2016 Mr Southey provided a further skeleton argument on behalf of the claimant replying to the submissions of the defendant, the concluding paragraph of which read:
"9 The claimant submits that the matters above demonstrate that the Secretary of State is wrong to argue that permission should be refused to rely upon amended grounds. To the extent that there is any doubt that submission is wrong, the claimant is entitled to an oral hearing ( ND) Afghanistan v Secretary of State [2012] 1 WLR 2422 [21]. That suggests that the issue of permission to rely on amended grounds could and should be adjourned to a hearing listed for 2 November."
On 10 October 2016 Mr Justice Blake determined the claimant's application to amend her grounds for judicial review. He did so on paper, without an oral hearing, and provided full reasons for refusing the claimant's application to amend her grounds for judicial review. He also provided directions as to future conduct of the case, including a direction that within fourteen days the claimant should provide a statement as to whether she still maintained her original grounds for judicial review, and the basis upon which she did so.
On 17 October 2016 the claimant made an application for an oral hearing to renew the application for permission to amend her grounds for judicial review. This is the hearing of that application. The defendant opposes the claimant's application to amend her grounds for judicial review on the merits. However, the defendant also raises a preliminary challenge to the jurisdiction of this court to consider the claimant's application to renew.
The challenge arises in this manner. It is pointed out that the claimant's original application form to amend the grounds for judicial review, dated 30 June 2015, indicated that the claimant was content for the application to be dealt with without a hearing. Thereafter, the defendant submitted skeleton arguments which, whilst seeking to oppose the application to amend the grounds for judicial review, do not themselves seek an oral hearing of that application. In these circumstances and in reliance upon the judgment of Mr Justice Ouseley in R (V) v Secretary of State for the Home Department [2012] EWHC 1499 Admin, it is submitted that Mr Justice Blake's decision to refuse the application to amend on 10 October 2016 was determined under CPR 23.8 (b), namely that "the parties agree that the court should dispose of the application without a hearing". In those circumstances it is argued that there is no provision for the claimant to renew the application for an oral hearing, rather the remedy is by way of appeal to the Court of Appeal.
The claimant does not accept this analysis, and submits that: firstly, under CPR 54, applications for permission to apply for judicial review carry with them a right to an oral hearing for renewal, in the event of an initial refusal on paper; secondly, that agreements to dispose of applications without a hearing under CPR 23.8 (b) require clear evidence that both parties have submitted to this procedure (see R (Compton) v Wiltshire Primary Care Trust (Practice Note) [2008] EWCA Civ 749). It is submitted that the inserting of an "X" in the box on the application form by the claimant is an insufficiently clear indication and that, in any event, the defendant's silence upon the point cannot be taken to be sufficient evidence of express acceptance that the application should be dealt with without a hearing; and, thirdly, it is submitted that regardless of any previous indications by the claimant in the application form that she was content to deal with the application to amend without a hearing, paragraph 9 of the claimant's skeleton argument dated 18 June 2016 (which found an echo in a further skeleton argument dated 3 October 2016) made it abundantly clear that, if the court was not minded to accede to the application to amend the grounds for judicial review, then the claimant wished to make submissions at an oral hearing.
In the light of the contents of the claimant's skeleton argument, dated 18 June 2016, I do not consider that it would be useful to determine whether, prior to that date, there was sufficient evidence that the parties had agreed that...
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