The Queen (on the application of FDA, PCSU and Prospect) v The Minister for the Cabinet Office
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Simler DBE,THE HONOURABLE |
| Judgment Date | 24 October 2018 |
| Neutral Citation | [2018] EWHC 2746 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3134/2018 |
| Date | 24 October 2018 |
and
[2018] EWHC 2746 (Admin)
THE HONOURABLE Mrs Justice Simler DBE
Case No: CO/3134/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Martin Westgate QC and Ms Claire Darwin (instructed by Slater and Gordon) for the Claimant
Mr Charles Bourne QC and Mr Paul Skinner (instructed by Government Legal Department) for the Defendant
Hearing dates: 4 October 2018
Judgment Approved
Introduction
Three independent trade unions (together “the Claimants”) who between them represent 200,000 civil servants employed by government departments, agencies and other public bodies seek to challenge the Civil Service pay remit guidance published by the Defendant on 25 June 2018 (referred to below as “the 2018 Guidance”). Their primary contention is the 2018 Guidance was issued in breach of an express promise to them, that there would be proper consultation (applying Gunning principles) following disclosure of the X figure contained in the 2018 Guidance, and before its publication. The X figure is a percentage range by reference to which annual departmental average pay awards to civil servants are limited absent specific authority to exceed the range. X was redacted from the draft guidance disclosed to the Claimants and not revealed to them until the 2018 Guidance was published on 25 June, when it was published as 1–1.5%. The Claimants seek an order quashing the 2018 Guidance on the basis that the Defendant acted unlawfully and in breach of their legitimate expectation of meaningful consultation.
The application for permission to pursue this judicial review was issued by the Claimants on 8 August 2018 and expedition was sought. The applications were resisted by the Defendant arguing (among other things) that no express promise of consultation was made and there was no breach of any legitimate expectation in the Defendant's approach to the 2018 Guidance and its publication. On 21 August 2018 Nicola Davies J ordered expedition of a rolled-up hearing for consideration of permission with the substantive hearing to follow if permission was granted. She set a tight timetable for the Defendant to file Detailed Grounds and serve witness statements.
The hearing before me proceeded effectively as a full substantive judicial review. Having heard the detailed arguments advanced on the Claimants' side by Mr Martin Westgate QC and Ms Claire Darwin, and for the Defendant by Mr Charles Bourne QC and Mr Paul Skinner, I consider that the arguability threshold is met and permission to apply for judicial review is granted. The remainder of this judgment addresses the merits of the judicial review challenge.
The Defendant's Detailed Grounds were served 10 days late on 20 September (an application to extend time having been allowed by me on 26 September 2018). The Defendant also missed the deadline for service of its witness statements, all due by 16.00 on 21 September 2018 (in the case of the main statement, by just under three hours, and for the remaining statements, five served at 18.26 on 25 September, the sixth at 21.27 on 26 September). The main reason for the delay given on the Defendant's behalf (by Louise Marriott in her evidence in support of the Defendant's application to extend time for service of its evidence) was the tightness of the expedited timetable in the context of issues requiring cross-departmental attention and the substantial work involved in producing the evidence.
The Claimants characterise this (not unjustifiably) as a wholesale failure by the Defendant to comply with the directions made (largely by agreement) in this urgent case. Though the Claimants have sought to respond as best they can, they say latedisclosure of documents given by the Defendant with its witness statements is incomplete and there has been insufficient time to pursue lines of inquiry identified by it. They contend that the entirety of the Defendant's factual evidence should accordingly be excluded as a sanction for the delay. When the question of specific disclosure was explored, it became clear that following late service of the witness statements, the Claimants invited voluntary disclosure by the Defendant of a number of specific additional documents. Some was given, though not to the full extent sought. The Claimants did not then make, nor have they to date made any application for specific disclosure.
Although I consider that there was a significant failure by the Defendant, I am satisfied that this was not the result of disregard for court orders or any sinister reason. The Defendant's legal team sought to comply with the expedited timetable, but I accept the difficulties Ms Marriott describes in meeting it in a complex case involving many witnesses (all with competing demands on their own time) where cross-departmental instructions had to be obtained. The Defendant acted responsibly in seeking extensions and agreeing to consequential extensions for the Claimants; the trial date has not been imperilled; and I do not consider that the delay has prejudiced the Claimants, whether in obtaining disclosure in circumstances where no application has even been made, or in any other identified way. It seems to me moreover that the justice of the case favours admitting the evidence: this is a public interest case in which many of the relevant facts are only in the knowledge of the Defendant's witnesses and the case turns largely on facts, not law. The Claimants themselves rely on the evidence of some of the Defendant's witnesses, and it seems to me that without the Defendant's evidence the court might risk deciding the case on a wrong view of the facts. In all the circumstances of this case, I am satisfied that relief from sanctions should be granted: I give leave to the Defendant to rely on the seven witness statements served late and extend time for their service to regularise them.
Separately, the Claimants criticise the Defendant's witness evidence, inviting me (if it is to be admitted) to treat it with extreme caution because the evidence of all witnesses save for Mervyn Thomas was “prepared after the witness statement of Mervyn Thomas was disclosed to them, and by reference to it … [which] risked encouraging the rehearsal or coaching of those 6 witnesses”. Ms Marriott has responded in detail to this point in her witness statement of 4 October 2018. In short, she explains proofs of each witness' evidence were taken separately and each gave an independent account. It was only when the six statements were in close to final form that Mr Thomas' statement was made available to the other witnesses. She states that no changes were made to the account of any of the meetings in any of the statements in light of what the other witnesses had read in Mr Thomas' statement, save to indicate the extent of their agreement. She also identifies a limited number of specific matters addressed by certain witnesses after reading Mr Thomas' statement. I am satisfied from her statement that there was no coaching or rehearsal of witnesses, and there is no basis for concluding that anything other than an appropriate process for the preparation of witness statements was adopted in this case. Accordingly, I approach all witness statements (including on the Claimants' side) on the basis that the writer is endeavouring to provide an accurate and truthful account of what he or she recalls or believes occurred.
The Claimants rely on witness statements from Mr Michael Clancy, General Secretary of Prospect, dated 6 August 2018; Mr Garry Graham, Deputy General Secretary of Prospect, dated 6 August 2018; Mr Paul O'Connor, Head of Bargaining and Industrial Strategy at the Public and Commercial Services Union, dated 7 August 2018; Mr David Penman, General Secretary of the FDA, dated 7 August 2018; Ms Lucille Thirlby, Assistant General Secretary of the FDA, dated 7 August 2018; and Mr Mark Serwotka, General Secretary of the Public and Commercial Services Union, dated 8 August 2018. Witness statements in reply (all dated 27 September 2018) have been provided by Mr Penman, Mr O'Connor, and Mr Graham. The reply statements were served late because of the late service of the Defendant's statements. The application to extend time for their service is (correctly) not opposed and is granted.
The Defendant relies on witness statements as follows: Mr Mervyn Thomas, Senior Civil Servant and Executive Director for Employee and Trade Union Relations at the Cabinet Office, dated 21 September 2018; Mr Simon Gush, Deputy Director for the CSEP Pay and Reward team, dated 25 September 2018; Mr Peter Jinks who was at the material time Deputy Director in the Civil Service Workforce team in the Cabinet Office leading the CSEP Pay & Reward team, dated 24 September 2018; Ms Alison Stanley who was at the material time HR Director, CSEP Pay and Reward in the Cabinet Office, dated 25 September 2018; Ms Esther Pilditch who was at the material time a Senior Policy Adviser in the Workforce Policy and Reward team leading on delegated pay, dated 25 September 2018; Ms Alice McCullough, part of the Employee and Trade Union Relations team at the Cabinet Office, reporting to Mervyn Thomas, dated 25 September 2018; and Mr Ignatius de Bidegain, of HM Treasury, dated 26 September 2018.
I have also been provided with a bundle of documents containing manuscript and typed-up notes of some meetings, and some correspondence and email exchanges relevant to the issues raised by this judicial review application.
Although there is a factual dispute as to whether a promise of ‘consultation’ was made on 4 June and/or afterwards, the Claimants have...
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