Applying for permission to bring a claim for judicial review: the meaning of "totally without merit"
This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
In order to bring a claim for judicial review, permission from the court is required. This means that the initial step in any such claim is an application for permission. The claimant will make that application based on its grounds and full evidence.
Ordinarily, where the court initially refuses a claimant permission to proceed with a judicial review claim, the claimant can request that the application is reconsidered again at an oral hearing. However, under CPR 54.12(7), a provision which was introduced on 1 July 2013, where the court refuses permission and also records that the application is "totally without merit", the claimant loses its entitlement to appeal the permission decision at an oral hearing.
On 9 June 2014, the Court of Appeal clarified the meaning of "totally without merit"in the unreported case of R (Grace) v Secretary of State for the Home Department, holding that the phrase should be interpreted simply as meaning the claim is "bound to fail".
Factual background
The claimant was Ms Pamela Alburtha Grace ("G"), a Jamaican national who had been living in the UK unlawfully for a number of years before making an application to the Home Office for leave to remain. G's application was refused by the Secretary of State and she subsequently sought permission to judicially review the decision. Kenneth Parker J, having considered the application on the papers, refused G permission to proceed with the claim for judicial review and recorded that the case was "totally without merit", effectively barring G from being able to appeal at an oral permission hearing under CPR 54.12(7).
G subsequently appealed the court's finding that her case was "totally without merit" to the Court of Appeal.
Issues and decision
The only issue before the Court of Appeal concerned which factors must properly be considered by judges in the Administrative Court or the Upper Tribunal when making a finding that a claimant's permission application was "totally without merit" and should be refused.
G argued that the proper interpretation of "totally without merit" should be limited to claims which were abusive or vexatious in nature. Referring to the origins of the test, which lie in civil restraint orders, G posited that in order to be classed as "totally without merit", an application would have to be so hopeless or misconceived so as to justify the issuance of a civil restraint order against the Claimant should the action be repeated.
In rejecting G's arguments, Maurice Kay LJ stated that the purpose of the amended CPR 54.12(7) was not only to prevent repetitive (or abusive/vexatious) applications but, more broadly, to reduce some of the general strain placed on the courts and other public authorities as a result of the the rapid growth in the number of judicial review claims which have been brought in recent years. To accord such a restrictive meaning to CPR 54.12(7) (as proposed in submissions on behalf of G) would defeat the purpose of rule's introduction, as too few judicial review applications would be caught and subsequently filtered out.
Instead, the court found that a case which was "totally without merit" was simply one which was "bound to fail", and it was not necessary to prove that the claim was abusive of vexatious in its nature.
Of course, a balance must be struck between the need of the courts to deal with a high volume of (often unmeritorious) cases efficiently as against the rights of claimants to be heard fairly. Maurice Kay LJ therefore went on to explain that there were two important safeguards to the potential limitations imposed by CPR 54.12(7). Firstly, there is an assumption that judges will consider all applications seriously, will take into account the potential impact on a claimant who is refused permission, and will only record applications as being "totally without merit" in circumstances where they are truly confident that the claim is indeed "bound to fail". Secondly, claimants will still have recourse to appeal before a Court of Appeal judge (albeit an application on paper rather than by way of oral hearing), who will independently and carefully reconsider the application (CPR 52.15(1A)(b)).
Comment
The Court of Appeal's decision has clarified the meaning of "totally without merit" in the context of judicial review applications and signals a more robust approach with regard to unmeritorious claims. This decision may be seen as a sensible compromise between claimants' proper access to justice on the one hand and the pragmatic need of the courts to confine the limited resources of the Administrative Court to meritorious cases.
