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Administrative Court Judicial Review Guide 2016: Help for persons representing themselves (“litigants in person”)?
In this blog I consider the Administrative Court’s Judicial Review Guide 2016 (“the Guide”). It is undoubtedly a massive help for solicitors, barristers and other legal advisers who are dealing with judicial review claims even on an infrequent basis. How much help can it be for a litigant in person?
The best way if you are representing yourself in the Administrative court to get help from the Guide is not to read it from the start. It moves from some preliminary matters (Part A) to talking about “the Claim” for judicial review in Part B. You could probably benefit by starting to read at chapter 3. This chapter deals with your position and the help available to you. You may find some of the technical language difficult and may have to refer back to some of the earlier chapters for clarification of some of the concepts. It is a Guide which would have benefited from a Glossary or an index. You can use it however alongside instructing a barrister on the Public Access Scheme and it will help you to meet the standards expected of anyone in these courts.
You could then look at chapter 5, which deals with the Judicial Review Pre-action Protocol (5.2), Situations where a Claim for Judicial Review May Be Inappropriate (5.3) and Time Limits (5.4). These are areas in which many judicial review applications have problems, and many fail. Before starting a claim for judicial review therefore, you should read these carefully.
Once you are certain that this is the right action to be taken, the Guide can help with the practicalities of getting a claim off the ground.
The Guide deals with the practicalities of starting a claim for judicial review in Part B. We have an “adversarial” system of law, which people generally understand: you bring your case before the judge and must prove the case you are asserting; the judge determines the case on the evidence which the parties put before him or her. However a central feature of judicial review is that at the stage of seeking permission to bring a claim (which every claimant must obtain), there is a duty of candour.
The Guide deals with the duty of candour (6.4), and gives a fuller explanation of what it means at Part C, chapter 14. A claimant representing themselves should be very careful about observing this duty. In essence you cannot supress information which would be detrimental to your case. You must be frank and open with the court about the pros and cons of your case. You can see an example of a discussion of a lack of candour in Khan, R (on the application of) v Secretary of State for the Home Department  EWCA Civ 416. You must disclose all information which is relevant to whether or not permission should be granted and cannot be selective in your presentation to the court. A claimant whose claim is not candid may find the claim dismissed on this basis. So it is a very important duty which the Guide seeks to explain.
The Guide deals with where to start the claim (6.6), and the documents that are needed (6.3). It covers the use of faxes and emails to file documents (the formal process of officially giving documents to the court) (6.7).
Chapter 6 deals with what happens if an application is refused when the case is first considered (by a judge reading the written grounds of the application). Grounds must be short, to the point. This may be an area in which professional writing may assist you even if you intend to represent yourself later in the proceedings. The Guidance states that the grounds must be:
“126.96.36.199: A detailed statement of the claimant’s grounds for bringing the claim for judicial review (which can be outlined in section 5 of the claim form or in an attached document). This document should be as short as possible, while setting out the claimant’s arguments in full.”
Paragraph 6.3.4 deals with all the other aspects of the case (such as a statement of facts) which should be contained in the application.
If the case is not granted permission “on the papers” there is an opportunity to renew the application by going to court and addressing the judge verbally. Chapter 8.4 deals with what happens on such an “oral” hearing of the case and 8.6 deals with the procedure at the oral hearing itself.
The Guide deals with the Acknowledgement of Service by a Defendant (Chapter 7) and you should examine these documents carefully to decide whether it is necessary to send a reply to the Acknowledgement of Service document to the court. You may realise at this point that you need to amend the claim. The Guide deals with applications to amend after permission is granted (9.2). You may however be able to make alterations to grounds before a permission hearing. You must make sure that the defendant knows what alterations you propose so that they can address them as necessary. A reply to the Acknowledgement of Service may reveal areas in which you need to amend your grounds, and this can be dealt with by the court when it is considering whether to grant permission or not.
Chapter 9 deals with “directions”, the orders the court can make about the preparation and running of the case so as to bring it to a full hearing at which the merits of the case can be considered. If there are missing documents or details these can be asked for; if there are changes to the claim or the defence (amendments) the parties can ask for directions about these and the court may make orders allowing or refusing them. If an interpreter is needed the Guide tells parties what to do in chapter 9.3.
Chapter 10 deals with the main hearing. It refers to it as the “substantive hearing”. This indicates that the court is not concerned anymore with questions of procedure to clarify points between the different sides, but is now trying the “substance” of the case. This is the point at which the court will consider who wins or loses, and which remedy, if any, to give. Remedies are dealt with in Chapter 11 and in particular you should consider whether your case may fail because even if you are right, your complaint about the defendant’s administrative decision does not result in an outcome which would be substantially different to that which the defendant reached in any event.
Chapter 12 deals with case management. It would be a mistake for a litigant in person not to read this early in the proceedings. It includes what happens when a party does not comply with the procedural rules the court demands (see 12.9.1) and the need to try to reach a settlement.
Part C deals with what it calls “specific practice points”. You will find details of the procedure on interim relief (Chapter 15) (what is to happen between the time you start the claim and the substantive hearing). Is it necessary to grant relief from the decision that has been made or will justice be done by a decision at the full hearing? If the administrative body’s decision takes effect before the full hearing, interim relief can be considered.
The Guide also deals with urgent cases (Chapter 16). There are many warnings about misusing the process. The procedure may be appropriate where “some irreversible action will take place if the Court does not act to prevent it, or where an expedited judicial review is required” (16.2.1). The Guide deals with applications that have to be made out of hours. These are very rarely needed, and they are not available to litigants in person (16.3.7).
Finally it deals with cost capping in the chapter explaining costs in judicial review cases. This is a process whereby a claimant, in certain circumstances can limit their exposure to paying the other side’s costs. There is a new procedure under the Civil Procedure Rules from 8 August 2016 (see 24.5) Judicial Review Costs Capping Orders (“JRCCOs”) A JRCCO may take a number of forms. The order may specify a limit on the amount that a claimant can be ordered to pay in respect of the other side’s cost if the claimant loses (e.g. A costs capping order is granted. The claimant’s liability for costs will be limited to £5,000). That order must be coupled with an order placing a limit on the amount that a claimant who is successful can recover from a defendant even if the claimant ultimately wins the case (sometimes called a reciprocal costs capping order).
The Guide deals with the procedure to be adopted for applying for cost capping orders (24.4.1). It should normally be done at the earliest opportunity. It is wise therefore to make the application on the claim form.
In summary, the Guide is useful for litigants in person, as long as its limitations are recognised (language and structure) and you make the most of it by using it in the right order! It is also worth remembering, though, that Judicial Review can be a complex legal avenue for holding public authorities to account and that you may benefit from expert advice at the right stage to ensure that you get the most out of it.