The Queen (on the application of John Dalton) v The Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews |
| Judgment Date | 27 July 2020 |
| Neutral Citation | [2020] EWHC 2013 (Admin) |
| Date | 27 July 2020 |
| Docket Number | Case No: CO/2315/2019 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2020] EWHC 2013 (Admin)
THE HONOURABLE Mrs Justice Andrews DBE
Case No: CO/2315/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dr Andreas O'Shea (instructed by JMW Solicitors LLP) for the Claimant
Mr John McGuinness QC and Mr Dominic Connolly (instructed by Crown Prosecution Service) for the Defendant
The Interested Party did not appear and was not represented.
Hearing date: 15 July 2020
Approved Judgment
INTRODUCTION
This claim for judicial review came before the court for determination on 15 July 2020, the hearing having been adjourned on two previous occasions for reasons beyond the control of the parties. Both parties were legally represented, though the Claimant (“Mr Dalton”), who is currently in HMP Thameside, had ably represented himself for several months before instructing solicitors in or around February 2020.
Unfortunately, the way in which the matter was presented to the court left a great deal to be desired. Although a hearing bundle was lodged with the court in June, I received the updated hearing bundle electronically at 20.45 on the night before the hearing. Mr Dalton's solicitors explained that they had had technical problems uploading it, for which they apologised, but they did not explain why the attempt to upload an updated bundle was left until the day before the case was due to be heard. Many of the key documents were missing from both the original bundle and the updated bundle. In any event the latter was lodged far too late to be of much assistance in preparation. Some of the missing documents were handed up during the hearing. I therefore had no opportunity to consider them in advance.
Even more seriously, the substance of the claim advanced at the hearing bore little resemblance to the case for which permission to proceed had been granted. The claim for judicial review, in its original incarnation, related to a decision taken in or around March 2019 refusing a subject access request made by Mr Dalton under section 45(1) of the Data Protection Act 2018 (“ DPA”). The Defendant (“the CPS”) accepted in November 2019 that the decision had been taken unlawfully. It offered to agree to a quashing order and, without waiting for a response, reconsidered the matter, making a fresh decision addressing and responding to the request – the principal redress that Mr Dalton would have obtained had his claim for judicial review succeeded at that time.
That should have brought these proceedings to an end, apart from Mr Dalton's claim for damages, if he sought to pursue it, which could have been made the subject of an order for further directions and transferred to the County Court. The re-made decision of 8 November 2019 appeared to have redressed the aspects of the original decision that were held by the judge who granted permission to be arguable public law errors.
Mr Dalton was dissatisfied with the new decision, albeit for different reasons. He asked the CPS to reconsider it and they did, producing a further decision on 25 February 2020. He also made fresh subject access requests, to which the CPS responded at the same time. By then, Mr Dalton was legally represented, though I have been informed since the hearing that funding was not agreed in principle until April. Of course, I acknowledge the practical difficulties of communicating with a client who is in prison in order to take instructions from him, especially in the current pandemic, but they provide insufficient excuse for what happened in this case.
CPR 54.15 provides that the court's permission is required if a claimant seeks to rely on grounds other than those for which he has been given permission to proceed, but this is not simply a case of seeking to rely on additional grounds without issuing an application and paying a fee. No steps were taken (even at the hearing) to seek permission to amend the claim form and statement of facts and grounds to challenge either of the later decisions. The nearest one got to an amended statement of facts and grounds were skeleton arguments from Mr Dalton's counsel, Dr O'Shea. Counsel's skeleton arguments are not a substitute for statements of case in proper form, irrespective of whether the claim is a public law claim or a private law claim.
Dr O'Shea's original skeleton argument was dated 27 April 2020 but not received by the CPS until 8 June 2020. The latest version, dated 13 July 2020, was included in the amended hearing bundle. It was therefore served and filed almost a fortnight after service of the CPS' skeleton argument (dated 2 July 2020). In that document, counsel for the CPS had tried to address what the CPS believed was the new way in which the claim was being advanced against it, based on what was said in the skeleton argument received on 8 June. They also provided the Court with an updated position on disclosure. There had apparently been a further tranche of material provided to Mr Dalton on 6 July with previous redactions removed, though this was said to provide no significant additional information.
Dr O'Shea's most recent skeleton argument took points of substance to which Mr McGuinness QC and Mr Connolly, on behalf of the CPS, had had no prior opportunity to respond.
The CPS was seemingly unconcerned by this highly unsatisfactory state of affairs, but I did not share its complacency. Of course, this Court must be assiduous to avoid form taking precedence over substance in cases where this would inhibit its important function of holding public bodies to account for abuses of power or other serious public law errors affecting the rights of the citizen. However, that does not mean that the parties are free to disregard the rules of civil procedure that apply to public law claims.
In R(Talpada) v Secretary of State for the Home Department [2018] EWCA (Civ) 84 Singh LJ said that it could not be emphasised enough that public law litigation must be conducted with an appropriate degree of procedural rigour. Both fairness and the orderly management of litigation required that there must be an appropriate degree of formality and predictability in the conduct of public law litigation as in other forms of civil litigation. He added at [68]–[69]:
“ the courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of “evolving” during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed.
These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation”.
That judgment was handed down in April 2018. Although those observations, with which I respectfully agree, were made over two years ago, and received publicity at the time, it seems that the message is still not being heeded, or not being heeded sufficiently. Judges of this court have been forced to remind practitioners of what was said in Talpada on several occasions since. Indeed, only last month May J justifiably complained about evolving grounds of claim (in the face of case management directions that had tried to keep them within bounds) in R(EG) v The Parole Board [2020] EWHC 1457 (Admin).
I wish to make it clear to practitioners who appear in the Administrative Court that failure to observe the requirements of the rules and/or case management directions, with the result that claims for judicial review evolve exponentially, denying the court any opportunity to consider material changes and evaluate how they impact on the proceedings, may result in orders being made with a view to reinforcing the message in Talpada. The court may refuse to allow the claim to proceed on grounds for which permission has not been given. It may also make adverse costs orders, even in cases where the claimant is ultimately successful in obtaining judicial review on new or expanded grounds.
This case was even more egregious than the example given by Singh LJ, because it was not just a case of informally evolving grounds of challenge to the decision for which permission to bring judicial review was granted. It was an attempt to bring a claim for judicial review of a different decision or decisions, on different grounds to those which for which permission was granted, and to do so without giving the Court any opportunity to consider whether there was justification for allowing the fresh claim to be brought within the existing proceedings (as there sometimes is). A line must be drawn somewhere, and this case falls comfortably on the wrong side of it.
I understand that Mr Dalton is concerned about delay, and I have some sympathy with those concerns, but if a case is urgent, one can apply for expedition and if there is a good reason for doing so, the timetable will be shortened. Concern about delay does not justify ignoring the need to take stock of the position in the light of concessions made...
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