R (PG) v London Borough of Ealing, The Ealing Hospital Managers and Jonathan Scott; R (G) v Ealing LBC (No 2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 18 March 2002 |
| Neutral Citation | [2002] EWHC 250 (Admin) |
| Docket Number | Case No: CO/1640/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 March 2002 |
[2002] EWHC 250 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
the Honourable Mr Justice Munby
Case No: CO/1640/2001
The Claimant appeared in person
Mr Hilton Harrop-Griffiths (instructed by Legal and Democratic Services, LB of Ealing) for the First Defendant
The Second and Third Defendants did not appear and were not represented
These are judicial review proceedings in which the claimant challenges the legality of her detention under section 3 of the Mental Health Act 1983. She was detained – she has since been discharged – by the second defendants under the care of her responsible medical officer, the third defendant, pursuant to an application made on 1 February 2001 by a social worker employed by the first defendant. The essential dispute, at least as between the claimant and the first defendant, is whether the claimant's nearest relative, her mother, did or did not object to the first defendant's application for the claimant's detention. That turns on what, as I understand it, are hotly disputed issues of fact.
At an oral hearing on 27 July 2001, which had previously been directed by Turner J, Scott Baker J gave the claimant permission to apply for judicial review as against the first defendant. The application for permission as against the other defendants stands adjourned.
Scott Baker J on 27 July 2001, and subsequently Keith J on 16 and 29 November 2001, gave directions for the substantive hearing of the claim against the first defendant. Included amongst the directions were directions for certain witnesses to attend for cross-examination.
The substantive hearing was listed before me on 11 February 2002. The claimant appeared in person assisted by a McKenzie friend. The first defendant was represented by Mr Harrop-Griffiths. In the event the hearing had to be adjourned for reasons which have nothing to do with the one issue with which this judgment is concerned. Those reasons are set out in the extempore judgment I gave on 11 February 2002.
Very properly and very helpfully, if I may say so, Mr Harrop-Griffiths raised as a matter of law the question of whether this court, following the comparatively recent supercession of RSC Order 53 by CPR Part 54, still retains the power to receive oral evidence and order the cross-examination of witnesses on their witness statements and affidavits. That is obviously a very significant question of some general importance. It is a question which it is important that I answer, not least because it has recently been highlighted by Mr Martin Smith in what is, if I may be permitted the observation, an important and helpful article, 'Cross-Examination in Judicial Review under the CPR', in [2001] JR 138.
There is no doubt that in the period immediately prior to the introduction of CPR Part 54 – and, indeed, long before that – the Administrative Court and its predecessors had power to receive oral evidence and direct cross-examination. Mr Harrop-Griffiths has referred me to a number of cases which trace the practice prior to the rule changes in 1977: R v Kent JJ ex p Smith [1928] WN 137, R v Stokesley, Yorkshire, JJ ex p Bartram [1956] 1 WLR 254, George v Secretary of State for the Environment (1979) 77 LGR 689. The position thereafter was stated authoritatively by Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237 at p 282G:
"whatever may have been the position before the rule was altered in 1977 in all proceedings for judicial review that have been started since that date the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires."
In his article Mr Smith helpfully lists, by way of example, a number of more recent judicial review cases in which cross-examination was ordered. In this connection Mr Harrop-Griffiths also referred me to the observations of Laws J (as he then was) in R v The Arts Council of England ex p Women's Playhouse Trust(1997) July 29 (unreported).
As Mr Harrop-Griffiths pointed out, the relevant provision was to be found in RSC Order 53 rule 8(1). This recognised that in judicial review proceedings the court could make an order under RSC Order 38 rule 2(3). That rule was in the following terms:
"In any cause or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion, evidence may be given by affidavit unless in the case of any such cause, matter or application any provision of these rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court."
The modern equivalent of RSC Order 38 rule 2(3) is CPR 8.6 which is in the following terms:
"(1) No written evidence may be relied on at the hearing of the claim unless –
(a) it has been served in accordance with rule 8.5; or
(b) the court gives permission.
(2) The court may require or permit a party to give oral evidence at the hearing.
(3) The court may give directions requiring the attendance for cross-examination of a witness who has given written evidence."
CPR 54.1(2)(e) and 54.2 apply CPR Part 8 to claims for judicial review. The problem arises because of CPR 54.16. This is in the following terms:
"(1) Rule 8.6 does not apply.
(2) No written evidence may be relied on unless –
(a) it has been served in accordance with any –
(i) rule under this Part; or
(ii) direction of the court; or
(b) the court gives permission."
Two things will be noticed about CPR 54. In the first place CPR 54.16(2) corresponds to CPR 8.6(1). Secondly, CPR 54 itself contains no provisions corresponding to CPR 8.6(2) and (3). The consequence is that there appears to be no provision authorising cross-examination in judicial review cases.
The learned editors of the Autumn 2001 White Book make this comment about CPR 54.16 in para 54.16.2:
"It is unclear whether this rule was intended to restrict the availability of cross-examination. It seems likely that the courts will regard themselves as able to order cross-examination in the exercise of their inherent jurisdiction in any event although there will be few judicial review cases where cross-examination will be appropriate."
Mr Smith in his article goes even further. He asserts (see p 140, para [9]) that "this...
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